Opinion
10-27-1809
Brooke's Administrators v. Shelly
Williams, for the appellants, admitted, No counsel appeared for the appellee.
This was an action of assumpsit brought, on the 28th of January, 1799, by John Shelly against Walter Brooke's administrators in the County Court of Fairfax, for sundry articles of household furniture sold and delivered, and work done by the plaintiff for the intestate. Pleas " non assumpsit by the intestate," and " non assumpsit by the same within five years next before the day of issuing the original writ; " on which pleas, issues were joined. At the trial, the plaintiff, in support of his cause, offered to the Jury an account stated, the items in which bore date in the years 1787, 1791, and 1792, " and offered to prove, that the said account was justly due from the said Walter Brooke, deceased, and that the said Brooke, about twelve months before his death, that is to say, some time in the year 1797, (about two years before the commencement of the suit,) acknowledged that the balance now claimed was just, and that the said Walker Brooke departed this life in 1798: but the Court, upon the motion of the counsel for the defendants, directed the items of the said account to be stricken out, and refused to hear the evidence offered by the plaintiff; " to which opinion of the Court the plaintiff excepted. Verdict and judgment for the defendants.
On an appeal to the District Court, holden at Haymarket, (the parties by their attorneys having agreed that the items of the account, expunged therefrom by the County Court of Fairfax, appeared to have been due more than five years before the death of the intestate,) this judgment was reversed, the verdict set aside and a new trial directed; the District Court, " being of opinion that the plaintiff ought to have been permitted to prove the assumpsit of the intestate within five years before his death:" but the judgment of the District Court did not go on to direct, as it ought, that upon the new trial, the evidence objected to should be received. From this judgment the defendants appealed to this Court.
Williams, for the appellants, admitted, that under the general act of limitations, a promise within five years will revive a debt barred; but relied on the 56th section of the act concerning wills, Rev. Code, vol. 1, p. 167, (which section was, for the first time, enacted at the session of 1792,) as imperative that the items shall be stricken out. The legislature meant to impose upon creditors the necessity of closing their accounts within five years. Though the replication states that there was an assumpsit within five years, yet that will not vary the words of the account. The Court are only to look into the account, and see that the items are within five years; and, if not, to expunge them. It would be a nugatory thing in the Court to strike out the items of the account, and then permit the Jury to hear evidence to establish it.
No counsel appeared for the appellee.
Judge Tucker. Judge Roane. concurring. Fleming having been prevented by indisposition from sitting in the cause.
OPINION
Judge Tucker. Judge Roane.
Monday, October 30. The Judges, TUCKER and ROANE, (FLEMING having been prevented by indisposition from sitting in the cause,) pronounced their opinions.
JUDGE TUCKER. The only question upon this record, is, whether the County Court ought to have admitted the evidence offered by the plaintiff to prove that Mr. Brooke, the defendants' intestate, within twelve months before his death assumed to pay to the plaintiff a balance of 631. 15s. appearing to be due upon an account stated, and in which there were credits for sundry payments to the amount of 931. 18s. made by the intestate in his life-time, or whether that evidence was properly rejected by the Court, by whom all the items of the account which appear to have been due five years before the death of the intestate were expunged therefrom, according to the act concerning wills, & c. Rev. Code, vol. 1, p. 167, c. 92, sect. 56.
The same question occurred in the case of Fisher's Executor v. Duncan & Turnbull, and Judge Fleming and myself then concurred in the opinion, that such evidence as that offered by the plaintiff ought not to have been rejected.
1 Hen. & M. 563, 574, 577.
The opinion of this Court in Beale v. Edmundson, I think strongly corroborates the other. I am therefore of opinion, that the County Court erred in rejecting the testimony and expunging the account, without hearing it, and that there is no error in the judgment of the District Court reversing that judgment. It may, however, be advisable to add to it a direction, that the County Court shall, on the new trial, admit the evidence formerly offered to be given, if the same shall be again offered to them.
3 Call 514.
CONCUR BY: ROANE
CONCUR
JUDGE ROANE. The principal item in the account bears date in 1787, and the act under which all the items of the account were expunged was not passed until the 13th of December, 1792. In the case of Fisher's Executor v. Duncan & Turnbull, I expressed it as my then opinion, that that act did not apply to previously existing accounts, inasmuch as it would affect the rights of the parties by making it the imperious duty of the Court to bar the plaintiff by a defence which before only rested in the discretion of the defendant. I still rather hold this opinion: but, as this ground of objection had been before disregarded by the Court in the case of Hoskins v. Wright, and was again apparently disregarded by the two other Judges in Fisher's Executor v. Duncan & Turnbull, I can readily yield my impressions on this point, to these decisions; and I will, therefore, consider this case as if every item in the account had arisen posterior to the passage of the act in question.
1 Rev. Code, vol. 1. p. 167, sect. 56.
1 Hen. & M. 563, 575.
1 Hen. & M. 377.
As to the question upon the merits, I entirely concur with the opinions of the two Judges as reported in Fisher's Executor v. Duncan & Turnbull, that the act of 1792 relates only to open accounts, and does not extend to exclude evidence of settlements or assumptions by testators within the time limited by the act. The reason and policy of this provision of the act does not require such a construction. In addition to these authorities, I beg leave to refer to the decision in the case of Beale v. Edmundson, in an analogous case. The grounds of that decision seem fully to apply to this case, and to narrow the application of the act to cases depending upon the account, as exhibited, only, and do not interdict proof of settlements or assumptions of the debt within the time prescribed by the act.
1 Hen. & M. 563, 574.
3 Call 514.
As, therefore, the appellant offered to prove in the Court below, not only that the account exhibited " was justly due," but also that the intestate, about twelve months before his death, " acknowledged that the balance claimed now by the plaintiff of his administrators was just," the County Court erred in refusing to admit such testimony to be adduced; and the judgments of the District Court, reversing the judgment of the County Court on that ground, is correct.