Carroll v. Waring

Stephen, Ch. J., delivered the opinion of the court. Although it appears to be the practice of the Court of Chancery in England, in the case of a plea, ruled to be sufficient, when set down for argument, to make the complainant pay five pounds costs, 1 Newl. Ch. Pr. 121, we do not consider that such a principle of practice can be sanctioned in this State, since the act of 1785, ch. 72, sec. 25, which contains in our opinion, a strong and irresistible implication, that a fine should be paid only by the party pleading, or demurring, whose plea or demurrer should be overruled. This express legislative provision, imposing a fine upon the party pleading or demurring, we consider a rejection of the English practice, which imposes a fine upon the complainant, where the defendant’s plea is allowed, or ruled sufficient; as it cannot readily be perceived, why the imposition of the fine, was confined by that law, to the party pleading or demurring, if it was intended that such principle of practice should be extended to the opposite party likewise. Upon the subject of the legal sufficiency of the pleas filed in this case, we concur in opinion with the chancellor. We do not think that it was necessary, that the pleas should have been verified by an oath. Whether there had been a sufficient lapse of time, to make the bar created by the act of limitations a defence to the complainant’s suit, fully and explicitly appeared upon the face of his bill. There was therefore no conceivable reason for requiring that the plea should be supported by such a sanction. Equally unnecessary was it, that it should have been supported by an answer ; because there was nothing charged in the bill, in avoidance of, or which could take the case out of, the operation of the act of limitations. The payment of interest, if it had been precisely, or definitely alleged in point of time, it is clear, both upon reason, and authority, would not have had that effect; because the language of the statute of this State, in the case of a bond, is positive and peremptory, that no bond shall be good and pleadable, or admitted in evidence, after the principal [504] debtor and creditor have been both dead twelve years, or the debt, or the thing in action, above twelve years standing, saving to the creditor the usual benefits, or exceptions of infancy, &c. It is also incontrovertibly established, that not even an express acknowledgment of the debt, will revive the remedy uponjhe bond, when barred by the operation of the act. The decree of the chancellor is therefore reversed, and the case sent back for further proceedings, agreeably to the principles herein contained. decree reversed.