Murchison National Bank v. Evans

Brogden, J. The defendants base their appeal upon the sole proposition that the answer filed by them constitutes a plea in bar, and therefore the trial judge had no authority to order a compulsory reference under *538 C. S., 573, subsec. 1, until tbe merits of tbe plea in bar bad first been determined. Tbe rule of law invoked by tbe defendants, is declared as follows in Duckworth v. Duckworth, 144 N. C., 620: “It bas been established witb us tbat no order of reference to take and state an account should be made when there is a plea in bar of account which goes to tbe entire demand until said plea bas been first considered and determined.” "What then is a plea in bar ? Tbe word “bar” has a peculiar and appropriate meaning in law. In a legal sense it is a plea or peremptory exception of a defendant, sufficient to destroy tbe plaintiff’s action, a special plea constituting a sufficient answer to an action at law, and so called because it barred — i. e., prevented — tbe plaintiff from further prosecuting it witb effect, and, if established by proof, defeated and destroyed tbe action altogether. Wilson v. Knox County, 34 S. W., 45. Black’s Law Dictionary defines a plea in bar as follows: “A plea which goes to bar tbe plaintiff’s action; tbat is to defeat it absolutely and entirely.” It bas been further defined as “any plea tbat denies tbe plaintiff’s right to bring and maintain bis action.” Jones v. Beaman, 117 N. C., 261. In North Carolina the, following pleas have been held to be pleas in-bar: (1) Statute of Limitations. Oldham v. Rieger, 145 N. C., 254. (2) Account stated. Kerr v. Hicks, 129 N. C., 141; 131 N. C., 90; Jones v. Wooten, 137 N. C., 421. (3) Failure to comply witb tbe provisions of a contract which are conditions precedent to liability. Bank v. Fidelity Co., 126 N. C., 320. (4) Plea of sole seizin by reason of adverse possession of twenty years against a tenant in common. But plea of sole seizin which by its very terms involves an accounting, is not a good plea. Duckworth v. Duckworth, 144 N. C., 620. (5) Release. McAuley v. Sloan, 173 N. C., 80. (6) Accord and satisfaction. McAuley v. Sloan, 173 N. C., 80. (7) Estoppel by judgment. Jones v. Beaman, 117 N. C., 259. Tbe latest utterance by tbe court on this question is contained in tbe comprehensive and pointed opinion of Connor, J., in Lumber Co. v. Pemberton, 188 N. C., 532, and tbe sound reasoning of tbat opinion is conclusive of tbe merits of this controversy. Tbe record discloses tbat tbe answer of tbe defendant does not constitute a plea in bar or such a plea as would deny tbe plaintiff’s right to bring and maintain bis action; but, upon tbe other band, when liberally construed, tbe liability of defendants was contingent upon a proper collection and application of a mass of collateral securities. This, in itself, and by its essential nature, “requires tbe examination of a long account on either side” and thus comes within tbe principle prescribed by C. S., 573, subsec. 1. Therefore, tbe judgment as rendered is correct and must abide. *539 It is generally agreed that the civil issue dockets of the State are greatly congested by reason of the overwhelming increase in business incident to the progress and expansion of commercial and industrial activities, and for this reason it is, perhaps, not amiss to be reminded of the practical wisdom contained in an utterance by Faircloth, C. J., in Jones v. Beaman, 117 N. C., 259: “Our statutes relating to trials by referees serve a useful purpose, and must be liberally construed. They aid and simplify the work which would otherwise fall upon the court and jury, and often expedite the litigation and save the parties from trouble and expensive trials, and are a saving in time to witnesses and attorneys.” Affirmed.