
    James B. Richardson vs. George Whitfield.
    The filing of consistent double pleas, so fax as their merit is concerned, is amere motion.of course, which only requires the signature of ■'Council.
    
      There may be cases of extreme hardship or gross fraud, which would justify the Circuit Court in rescinding the orders of a preceding term, yet when one Judge has granted leave to plead, the statute of limitations, another Judge will not interfere.
    Tlie statute of limitations, having once commenced to run, is notsuspeiii .ded by the defendant’s going out of the state.
    BY process of attachment. — This was an setion of assumpsit, by process of attachment, to recover back the price paid for a negro (Jack,) who turned out to be unsound.
    The defendant had pleaded the general issue, and at January Term, 1821, he obtained an order of the court, granting-leave to plead the statute of limitations.
    Some time after, this plea was accordingly filed, and when the cause came on to be tried at the May Term following, the plaintiff’s counsel moved to strike out the plea of the statute of limitations, on the ground, that the order, under which it was filed, was obtained without his having had notice of the application'for it. This motion was overruled, and the case went to the jury, and they returned the following special verdict. • “We find for the plaintiff on the general issue, and if the court shoulcf be of opinion that he is not barred by the statute of limitations on the facts hereinafter found, wc assess his damages at seven hundred and eighty-eight dollars. On the plea of the statute of limitations, wo find that the plaintiff purchased the negro Jack of the defendant on the 20th February, 1805. That it was known to the plaintiff in one month thereafter, that the said negro Jack was diseased of fits, and that on the 27th day of April following,- the defendant left this state, and has never since returned to it, and if, under these circumstances, the court should be of opinion that the plaintiff' is barred, we find for the defendant.”
    The writ was lodged in the sheriff’s office on the 5th of March, 1S17, so that nearly twelve years had run from the date of the contract, before the bringing of the action.
    The plaintiff now renewed his motion to strike out the plea of the statute of limitations, and for leave to enter up' judgment on the finding on the general issue. In the event of failing in this motion, he then moved for leave to enter up judgment for the plaintiff on the special verdict generally.
   Mr. Justice Johnson

delivered the opinion of the court:

The.defendant has a legal right to defend himself against the action of the plaintiff on as many different grounds as the nature of the action, and the merits of his defence will allow, and as a right, the court has no power to withhold it. The only limitations to it are,

1 st. That they shall not involve the ridiculous absurdity of being inconsistent, and,

2dly. That they shall not operate as a surprise on the plaintiff, by being made at the moment of the trial, when he cannot be expected to meet them.

Within these limitations, the court has no control over the right, and the whole object of applying for leave to plead double, is to preserve them : so that in truth, the filing of consistent double pleas, so far as their merit is concerned, is a mere motion of course, which only requires the signature of counsel. (I Chitty on Pleading, 610.,) It is not denied, that according to the uniform practice, these pleas are to be regarded as consistent. Indeed I have never heard it questioned, and the only question is whether in respect to the order obtained, and the filing of the plea, it ivas calculated to surprise the plaintiff. The order had been obtained at a preceding term, and the plea filed in vacation in the usual way, and if the plaintiff had been vigilant, he must have been apprised of it in time to prepare to meet it, and if in truth he was not, it might have been the foundation of an application to the discretion of the court for a continuance ; hut that was not the object; for it is apparent that this motion was an effort to get rid of a legal, and therefore a meritorious defence, which would probably, and in the result, will be fatal to the plaintiff’s case.

There is another view of this question. The effect of striking out this plea would have been a virtual rescisión of the order under which it was filed ; and notwithstanding there may be cases of extreme hardship or gross fraud which would justify the court in rescinding the orders of a preceding term, yet, in this case, both the order to file the plea, and the application to strike it out, were addressed to the discretion of the court, and if it was ¡permitted in those cases, there would be an end to every thing like judicial discretion. The cases of Durant vs. Staggers, (2 Nott & McCord, 288,) and Macon vs. Mathis, (1 McCord, 172,) are, I think, decisive on this question.

The motion for leave to enter up judgment on the special verdict generally, involves a question of more importance. The finding as to the time when the plaintiff purchased, and when he came to the knowledge that the negro was unsound, is applicable- only to the enquhy as to the time when the action may be said, within the meaning of the statute to have accrued. But a discussion of that question is superseded by the fact, that the defendant remained here more than a month after the last event — so that whether the action accrued at the time the contract was made, or when the unsoundness of the negro was known to the plaintiff,' is unimportant, as the statute in either event had commenced to run before the defendant went away, and if it continued to run, the plaintiff was barred at the time the action was brought. The only question submitted by the special verdict therefore, is whether the statute having once began to run, its operation was or was not suspended, by the defendant’s going out of the state ? The negative of this proposition, as a general rule, has never been controverted. It is the received doctrine in the English courts. It prevails in New York, and the case of adm’rs of Adamson vs. Smith, (2 Const. Decisions, 273,) decided by this court, is in accordance with it. For the doctrine and cases applicable to it, I refer without comment to the case of Faysoux vs. Prather, (1 Nott & McCord, 303,) where they are collected and digested in the most masterly manner. 1b referring to this case., it is not intended to revive the discussion of the question there agitated, and which some of my brethren regard as still unsettled, but with a view barely to notice, that this case does not fall within the reason of the exception contended for in opposition to the operation of the rule. The contest there was whether the saving in the statute in favor of infants did or did not extend to cases where the right which accrued, -was incumbered with a partial operation of the statute; as in. that case, where a descent is cast after the statute has began to run against the ancestor ? But here the plaintiff and defendant are tlie immediate parties to the transaction, out of which the action arose ; and, admitting for the sake of argument, that that case constituted an exception, this is not analogous to it, and it was incumbent on the plaintiff to shew that there was another, within which, this case comes. No case of the sort has been produced, and I believe none such exist. The converse appears to me.so palpable that the probability is that the question has never been made.

Pepoon, -for the motion.

King, contra.

The motion is therefore refused, and leave given to en» ter up judgment for the defendant.

Justices Nott, Richardson and Cotcock, concurred»-

Gantt, Justice, dissented.  