98 Va. 646 | Va. | 1900
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
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
Reversed.