
    *Hickman v. Stout.
    February, 1830.
    (Absent Coalter and Green, J.)
    Equity Jurisdiction — Account—Case at Bar — Bill in chancery stating- running- accounts for many years "between plaintiff and defendant, consisting of numerous items of debit and credit or claims for them on both sides, and praying- an account and decree for balance: Held, this is a bill for an account which equity will entertain, though as-sumpsit might have lain at law.
    Same — Exceptions to — Time of Taking.  — Where bill in chancery states matter proper for relief inequity, and defendant without pleading to jurisdiction in abatement, answers the bill, he is precluded from taking exception to jurisdiction afterwards, by stat. 1 Rev. Code, ch. 66, § 86. Aliter, if bill on its face, shew case not properly relievable in equity.
    
      Chancery Practice — Statute of Limitations — How Relied on. — The statute of limitations cannot be insisted on in equity, without being- pleaded, or in some form, relied on as a defence, in the pleadings.
    Stout exhibited his bill against Hicker-man, in the superiour court of chancery of Clarksburg, setting forth that there had been for a series of years mutual accounts between him and Hickman, consisting on his part of charges for blacksmith’s work done by him for Hickman, and on the other side of credits for various articles supplied and payments otherwise made to him by Hickman ; that on these accounts there was a balance justly due to him of some 325 dollars; but that owing to his confidence in Hickman, to the circumstance of his frequently doing his smith’s work by himself, and to the nature of the account, consisting of numerous small charges and running during several years, he was unable to adduce full proof of the items. He exhibited his state of the account with the bill; called upon Hickman for a discovery as to the justice of it; and prayed an account, and a decree for the balance that should be found due to him.
    Hickman answered, that it was true that Stout had a claim against him for blacksmith’s work, but he could not state the just amount duo to him; that he had seen the account exhibited with the bill; it was in some parts just, in others unjust; there were items of debit against him in it, with which he was not justly chargeable, and he was entitled to credits that were not allowed him; but the answer did not '"specify either the items unjustly charged to him, or the credits unjustly omitted, in the account exhibited by Stout.
    Many depositions were taken and filed by both parties. The answer of Hickman being vague and general, and affording no specific evidence of the justice of Stout’s claim, or of any part of it, Stout had to rely intirely on his own proofs. He was only able to adduce specific evidence of a part of the items of his account, and evidence of his having done Hickman’s blacksmith’s work for several years, and of the probable quantum of work required by him; so that the case, in the event, depended upon an estimate of the probable amount of the work yearly done, to be made upon consideration of all the circumstances. It appeared, • that all the evidence which was adduced by Stout. in the progress of the cause, was in his power at the time he exhibited his bill; and it is obvious, that the evidence was of a nature to avail him as well in an action at law, as in this suit in equity.
    The charges in Stout’s account, commenced in 1814; and his bill was exhibited in 1823; so that the charges of some three or four years were of an older date than five years before the commencement of the suit.
    Chancellor Tucker referred the accounts between the parties to a commissioner, who made a report, which the chancellor disapproved ; and, proceeding himself to adjust the account, upon the principle of a fair annual allowance to Stout for the work done by him for Hickman, he decreed to Stout 163 dollars with interest from March 1823; a sum far short of Stout’s demand. From this decree Hickman appealed to this court.
    The case was argued here by Michie for the appellant, and Wyndham Robertson for the appellee.
    Two points of law were made in the argument:
    1. Michie objected to the jurisdiction of the court of chancery; and argued, that the case set forth in the bill was so exactly the proper subject of an action of assump-sit, that ’x'if this bill should be entertained, every case of assumpsit might be brought into equity.
    Robertson answered, that this was a bill for a discovery, and a case too of mutual accounts, which was a settled head of equity, and that the objection came too late. He referred to the statute, which provides, that “after answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made, nor shall the su-periour courts of chancery, or any other court, ever thereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except in controversies respecting lands lying without the jurisdiction of such court, and also of infants and femes covert.” 1 Rev. Code, ch. 66, % 86, p. 214; Pollard v. Patterson, 3 Hen. & Munf. 67.
    2. Michie insisted, that all the items of Stout’s account of an older date than five years before the commencement of the suit ought to have been disallowed, as being barred by the statute of limitations ; and, for the same reason, the chancellor on his principle of adjusting the claim, ought not to have carried the yearly allowances to Stout farther back than five years.
    Robertson answered, that the statute of limitations was not pleaded, or in any way relied on.
    Michie replied,
    that it could not have been pleaded; for, in the account which Stout exhibited with his bill, there was no debit to Hickman of an older date than the five years: the objection appeared in the progress of the cause, when the accounts came to be stated by the commissioner.
    
      
      Equity Jurisdiction — Account.—In matters of account, courts of equity possess a concurrent jurisdiction in most,'if not all, cases with courts of law. Tillar v. Cook, 77 Va. 480, citing the principal case.
      In discussing the jurisdiction of courts of equity in matters of account Petty v. Fogle, 16 W. Va. 513, and Yates v. Stuart, 39 W. Va. 129, 19 S. E. Rep. 425, cite the principal case.
      For further information on this subject, see footnote to Coffman v. Sangston, 21 Gratt. 263; foot-note to Sturtevant v. Goode, 5 Leigh 83; monographic note on "Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
    
      
      Same — Exceptions to — Statute — Application. — By statute, 1 Rev. Code 1819, p. 214, § 86, it was provided that "after answer filed and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made; nor shall the court every thereafter delay or refuse justice, or reverse the proceeding for want of jurisdiction, except,” etc. Notwithstanding the strong language of this statute, it was unanimously decided in Pollard v. Patterson, 3 Hen. & M. 67, that the statute meant to embrace those cases only in which the bill showed on its face proper matter for the jurisdiction of equity, and the exception had to be taken by plea; and that the omission to plead gave equity no power to decree in favor of the plaintiff, if the case appeared upon the face of the bill to be a mere legal question. The construction of the statute adopted in this case has ever since been followed. Stuart v. Coalter, 4 Rand. 74; Hickman v. Stout, 2 Leigh 6; Morgan v. Carson, 7 Leigh 238. — Moncure, J., delivering the opinion of the court in Hudson v. Kline. 9 Gratt. 386. To the same effect, see the principal case cited in Beckley v. Palmer, 11 Gratt. 632; Boston Blower, Co. v. Carman Lumber Co., 94 Va. 100, 26 S. E. Rep. 390. See further, foot-note to Hudson v. Kline, 9 Gratt. 380; foot-note to Beckley v. Palmer, 11 Gratt. 625; monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 157.
    
    
      
      Chancery Practice — Statute of Limitations — How Advantage Taken. — No rule is better established than that one cannot avail himself of statute of limitations, in a. suit in equity, without pleading it. To this effect the principal case was cited in Gibson v. Green, 89 Va. 526. 16 S. E. Rep. 661: Hubble v. Pott, 98 Va. 647, 37 S. E. Rep. 277; Woodyard v. Polsley, 14 W. Va. 220.
      In Humphrey v. Spencer. 36 W. Va. 18, 14 S. E. Rep. 113, and Bartles v. Gibson, 17 Fed. Rep. 298, the principal case was cited to the point that the statute of limitations must be in some way relied on by demurrer, plea, or answer. While this seems to be the West Virginia rule, in Virginia, the defense must be made by plea or answer; it cannot he taken advantage of by a demurrer to the bill. See footnote to Colvert v. Millstead, 5 Leigh 88.
      See generally, monographic note on “Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
    
   CARR, J.

It was insisted for the appellant, that this was a simple demand for work and labour done, the proper subject of an action of assumpsit, and therefore no case for relief in equity. To which it was answered, that the objection comes too late, and that this is a bill for a discovery, and a case of mutual accounts. The position, that the objection comes too late, was rested on the 86th section of the statute ^concerning' the courts of chancery. The very point was considered by this court, and ably and learnedly discussed in Pollard v. Patterson. The unanimous opinion of the court was, that the statute meant to embrace cases, where the bill shewed a case proper for equity, and the exception had to be taken by way of plea; but that the omission to plead gives equity no power to decree in favour of a plaintiff, upon a case appearing upon the face of the bill, to be merely a legal question. This opinion is supported by sound reason, and unquestioned authority ; and the point has ever since been considered as settled. We must, therefore, inquire, whether this bill, on its face, states a case exclusively proper for law? whether, in other words, a demurrer to it would have been sustained? I do not think such demurrer could have been sustained. The bill, states mutual accounts between the parties, running through a series of years, and consisting of numerous items of blacksmith’s work, on the one hand; and on the other, of' various articles of country produce delivered, such as wood, coal, hay, wheat, potatoes; of money paid at different times; of work done with wagons &c. When I speak of the bill, I consider the account filed with it, as a part’of it. The bill also seeks a discovery: but without considering this last point, the first is sufficient, I think, to support the jurisdiction. It is laid down, in all the books of practice, that account is a settled head of equity jurisdiction. This point was before this court in the case of Smith v. Marks, 2 Rand. 449, where the authorities were examined, and this conclusion drawn, that the word account is to be understood' as applying to every case, where there is a demand on one side, and a set-off on the other; that a single matter could not be the subject of a bill in equity, but there must be mutual demands. In the case of the Corporation of Carlisle v. Wilson, 13 Ves. 278, the chancellor states the grounds of this jurisdiction: “the principle (he^says) upon which courts of equity originally entertained suits for an account, where the party had a legal title, is, that though he might support a suit at law, a court of law either *cannot give a remedy, or cannot give so complete a remedy, as a court of equity; and by degrees courts of equity assumed-a concurrent jurisdiction in cases of account; for it cannot be maintained, that this court interferes only when no remedy can be had at law.” He concludes, that equity exercises a sound discretion, in decreeing or refusing an account. I do not think, therefore, that a demurrer-to this bill could have been sustained.

It was also insisted in the argument, that the statute of limitations, though not pleaded, ought to have been applied to the appellee’s account. There is no rule better established, than that one cannot avail himself of the statute of limitations, in a suit in equity, without pleading it. This was admitted as the general rule; but the appellant’s counsel argued, that this case was taken out of it, because neither the bill, nor the account exhibited with it, shewed any items of more than five years standing. If this were the fact, I do not think it would have entitled the defendant to avail himself of the statute without pleading it, however he might have taken advantage of the defect in another way: but it appears on examination, that the counsel is mistaken as to the fact: the account exhibited with the bill, the account which Hickman in his answer said he had seen, commences as early as 1814.

The chancellor has reduced Stout’s demand more than I should have done upon the evidence: but of this the appellant cannot complain, and the appellee does not.

The other judges concurring, the decree was affirmed.  