WILSON quired security for costs from the Complainant, who did not reside in Virginia.

v. KOONTZ.

To this replication there was a general rejoinder and issue, and a general dedimus to take depositions. Upon the return of which the cause came to hearing upon the pleadings and evidence. Whereupon the court below decreed that the bill should be dismissed with costs; from which decree the Complainant appealed to this Court.

E. I. LEE, for the Appellant.

It was not necessary for the Complainant to reply matter to bring himself within an exception to the statute of limitations; because the circumstances which take the case out of the statute are stated in the bill.

Before the Defendant can be permitted to plead the statute, he must, by answer, either deny the debt or aver it to be paid. Gilb. chancery practice, 61.

The statute of limitations is not properly a plea in equity. The statute does not make it an absolute bar in equity. It is only under the equity (i. e. the reason) of the statute that Courts of equity allow it to be pleaded. If it appear clearly that the debt has not been paid, the statute is no bar in equity. The questions put by Koontz upon the examination of the witnesses show that the debt was not paid. Less evidence than this has been held to take a case out of the statute. It would have been no bar for Ober, who never resided in Virginia: and if not a good bar for Ober, it was not for Koontz. The plea does not state that Ober, the other partner, did not promise within 5 years.

TAYLOR, Contra.

There is nothing in the replication or the evidence to take the case out of the statute. The only question then is whether the statute is a good plea in a suit in chancery. This is not properly a case of equity-jurisdiction. It is simply an action at law upon a promisory note. Nothing gave jurisdiction to the Court as a Court of equity, but the circumstance that the Defendant was a resident of Virginia and had effects in the

v.

hands of residents in this district. The Defendant WILSON having appeared and given security, so as to discharge the attached effects, nothing remains to be decided but KOONTZ. the sheer law of the case; and when a Court of equity gets possession of a case which is a mere case at law, if it is allowed to proceed at all, it must decide the case as a Court of law would decide it.

If a bill charge fraud or trust, it is admitted that the Defendant must answer to the fraud or trust before he can plead the statute of limitations. But this bill charges no fraud nor trust, nor seeks any discovery from the Defendant. He is therefore not bound to answer, but may rely entirely on his plea. 3 P. Will. 144. The South Sea Comp. v. Wymondsell. 2 Com. Dig. 261. 2 Atk. 51. If the Complainant thinks the plea bad he may demur, or except. But here is neither exception nor demurrer. Laws of Virg. Rev. Code, 73, § 40.

March 10th.....All the judges being present,

MARSHALL, Ch. J. delivered the opinion of the Court to the following effect:

This is a suit in chancery, and the Defendant pleads the act of limitations. The Plaintiff by his replication attempts to bring the case within the exception contained in the 14th section of that act; but it seems essential, under that section, that the Complainant should have been actually defeated or obstructed in bringing his action by the removal of the Defendant. There is no evidence of his intention of bringing his action sooner than he did, or that he was delayed by the Defen dant's removal from the county. The Court is therefore of opinion that the circumstance of removal is not sufficient to take the case out of the statute.

It is objected, that the plea of the statute of limitations is not good unless the Defendant answer also and deny the debt, or aver it to be paid. But if this be a valid objection, it ought to have been taken at the time of offering the plea, and before the issue was joined. It is now too late.

If it be a good objection in cases within the general

WILSON jurisdiction of a Court of equity, yet it is not valid in a V. case like the present which is really a case at law as KOONTZ. between the present parties.

The Court is of opinion that the plea is a good bar, and that the decree should be affirmed.

1812.

March 6th.

RIDDLE. MOSS.

Present....All the Judges.

ERROR to the Circuit Court for the district of Columbia.

This was an action of debt on a joint bond given by John Welch as principal obligor and the Defendant Moss as his surety. The suit abated as to Welch by the return of the marshal, that he was no inhabitant of the district. The Defendant, Moss, pleaded specially certain facts in avoidance of the bond as to him alone; upon which issue was joined; and upon the trial the Defendant, Moss, offered, as a witness, the said John Welch the principal obligor, who was permitted by the Court below to testify for the Defendant, and upon his cross examination confessed that he had made over to Moss all his property as security to indemnify him against the event of this suit.

The Plaintiff took a bill of exceptions, and the verdict and judgment being against him, brought his writ of error to this Court.

E. I. LEE and JONES, for the Plaintiff in érror.

Welch was clearly an interested witness. By reliev-. ing Moss from this suit, he would relieve his property from the lien which Moss held upon it. If the Plaintiff recovered against Moss, the latter could immediately recover judgment against Welch for the whole debt, together with the costs of this suit. Laws of Virg. Rev. Code. 292.-5. T. R. 578, Buckland v. Tankard.--Bull. N. P. 283-5. Bur. 2727.-3. Atk. 402.-Day. 81.

v. MOSS.

Welch is also interested to the amount of his legal RIDDLE fees for attendance as a witness. It appears upon the record that he was regularly summoned and is by law entitled to demand of Moss one dollar and a quarter per diem. If the Plaintiff should be defeated he will retain this to his own use, but if the Plaintiff should recover judgment he will have to refund it to Moss.

C. LEE, contra.

The Defence set up by Moss did not affect Welch's liability upon the bond. He was bound at all events. He was not a party to this suit. Neither the verdict nor judgment could affect him. He would be obliged to pay either Riddle or Moss and it was immaterial to him which of them should recover against him. If the Plaintiff should be defeated by Moss, he would sue Welch and recover judgment with costs-so that it was immaterial to him whether he paid costs to one or the other. He therefore stood indifferent as to interest. In chancery one Defendant is a good witness for another, and it would be as good a rule at law.

Courts of law have, of late, inclined to refer all cases of doubtful interest, to the credibility, rather than to the competency of the witness. The interest should be immediate and direct, in order to exclude the witness. 3. Esp. Rep. 60.

The statute of Virginia which gives to a surety, a remedy against his principal does not alter the case. He had an equal remedy before.

In the case of Pawling v. The United States, & Cranch, 219, the point was made by a bill of exceptions to the refusal of the district court of Kentucky to admit a coobligor as a witness, but was not decided, the judgment having been reserved upon other grounds.

March 10th....All the Judges being present,

MARSHALL, Ch. J. delivered the opinion of the Court to the following effect.

The Court is of opinion that Welch, the co-obligor, was interested, and was therefore an incompetent wit

RIDDLE ness.

0. MOSS.

It was a consideration of some importance that he had given Moss a deed of trust of his effects to indemnify him against this suit; but the principal circumstance was, that Welch's liability would be increased, to the extent of the costs of this suit, if the judgment should be against Moss.*

Judgment reversed.

1812.

March

6th.

SHEEHY v. MANDEVILLE.

A note paya

Present....All the Judges.

ERROR to the Circuit Court for the district of

ble at 60 days, Columbia sitting at Alexandria.

cannot be

given in evi

dence to sup.

which count

This cause having been sent back to the Circuit Court, port a count by the mandate of this Court, at February term 1810,† upon a note, commanding that Court to render judgment for the Plaindoes not state tiff on his first count and to award a writ of enquiry of when the note damages, upon executing that writ of enquiry the Plainwas payable. The variance tiff produced the following note.

is fatal.

Upon executing a writ of enquiry in Virginia in an

sumpsit upon

"Alexandria 17th July, 1804.

"Sixty days after date, I promise to pay to Mr. James

action of as-Sheehy, or order, six hundred and four dollars and ninety one cents, for value received, negotiable in the Bank of Alexandria.

a promisory note, it is necessary to produce a note corresponding with that sta

ted in the declaration; but it is not neces

sary to prove

the note The Plaintiff cannot give evidence that the variance was the effect of mistake or inadvertence of the attorney, and that

R. B. JAMESON,"

The note was thus described in the declaration, "And "whereas the said Defendants under the name, firm and style aforesaid, did on the said 17th of July, 180, "make their certain note in writing called a promissory

The same point was also decided in the case of the Governor of Virginia v. Evans and others, at this term; which was the case of a bond with collateral condition. It was a joint action; and all the Defendants were taken, but pleaded separately.

Ante, Vol. 6, p. 253.