Hubble v. Poff , 98 Va. 646 ( 1900 )

Keith, P.,

delivered the opinion óf the court.

The question which we have to dispose of at the threshold of this case is: Can the statute of limitations be availed of in a court of equity by a demurrer to the bill?

In Hickman v. Stout, 2 Leigh. 10, Judge Carr says: “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, showed 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.”

In Tazewell v. Whittle, 13 Gratt. 344, Judge Moncure says: “ It is certainly true, as a general rule, that this defence must be made by plea or answer; and the rule applies as well to a court of equity as a court of law.”

The same doctrine is recognized in Colvert v. Millstead, 5 Leigh 104; Smith v. Pattie, 81 Va. 665; Gibson v. Green, 89 Va. 526.

Barton, in the first volume of his Chancery Practice (2 ed.), page 83, after reviewing the Yirginia cases, deduces from them the following conclusions: “ That, although the bill states on its face a case which is barred of relief by the statute of limitations, or by the rules of equity analogous thereto, yet, nevertheless, no such defence is available, unless it be set up in some way, by plea or answer, so as to apprize complainant of the intention of the defendant to rely on it.”

The practice that obtains in other jurisdictions may be better and more consonant to reason, but we are bound by the law as established by the cases which we have cited.

The Circuit Court, in its decree, sustained the demurrer to the bill. In the briefs of counsel it is stated that the ground ■upon which the court rested its decision was that the plaintiff’s right of action was barred by tbe statute of limitations. Ho other cause of' demurrer has been assigned or appears, and having reached tbe conclusion that tbe statute of limitations cannot be interposed in this State by demurrer to a bill in equity, tbe decree of tbe Circuit Court is reversed.

Reversed.