Paull, Judge.
This was an action of debt brought in the Circuit Court of Greenbrier county by Joseph A. Huffman against Oscar Callison, Administrator of J. Marcus Al-derson, on promissory note made by the latter, and bearing date on the 5th of November 1861, and becoming due twelve months after date.
The summons commencing this action was issued and bears teste on the 30th day of June 1869. At a term of the Court held on the 15th day of October 1870, by consent of parties, the name of Oscar Callison, as Administrator of J. Marcus Alderson was stricken out, and the name of Wallace Robinson, Administrator, was inserted instead. To the declaration in this case the Defendant filed the plea of payment, and four special pleas, as follows; the first, that the consideration of the note sued on was Confederate ■ Treasury notes, issued by an illegal association hostile. to the Government of the United States; the second was the plea of the statute of limitations, to-wit: that the cause of action, set out in *307Plaintiff's declaration, accrued more than five years before commencement of this suit; the third was a plea of usury; and the fourth, that part of the consideration of the note -sued on was Confederate Treasury notes, &c. Objection was made to the filing of the first and fourth pleas; but the objection was overruled and they were filed. General replication was filed, and issue joined on these pleas: issue was also joined on the third plea. To the second plea Plaintiff replied generally, and tendered two special replications, to the filing of which Defendant objected, which objection was sustained by the Court as to the first, and overruled as to the second of 'said replications, and permitted it to be filed; and the Defendant rejoined generally, and issue was joined. The first special replication sets out that the statute of limitations was suspended from April 17,1861, to March 1, 1865, by an act of the Legislature of West "Virginia, passed &c., and was rejected. The second replication sets out that the statute was suspended in the county of Greenbrier during the whole of the late war, to-wit: from the — day of —, 186-, to the — day of —, 186-, because the legal courts of said county were- closed during said period, and was filed. Under this state of the pleadings a trial was had at a term of said Court in December 1871. During its progress five different instructions were asked by the Defendant, two of which were given, and three refused. Sundry exceptions Were also made on the part of the Defendant to some of the Plaintiff’s testimony; the objections being overruled, and the evidence admits ted, the jury found for the Plaintiff the debt in the dec-Taration mentioned, and judgment was rendered for $571.65; and thereupon the defendant moved for a new trial, which motion was overruled, and the defendant excepted ; and thereupon an appeal is taken to this Court.
We proceed to notice briefly the points as they are presented in the record; and first the Court erred in not sustaining the objection made to the filing of the first *308and fourth special pleas: for reasons given in the case of Mathew Harrison, Ex’r vs. The Farmers' Bank of Virginia at the present term, these pleas are deemed immaterial, and, though issue be joined on them and found for either party, may be disregarded. In the second place the Court did not err in rejecting the Plaintiff’s first special replication to the second special plea, which merely presents a conclusion of law, of which he could have availed himself, if true, in some other form during the progress of the trial. The Court erred in admitting the Plaintiff’s second replication, as it does not allege the exact period of the war, or exactly how long the courts were closed, for that period only could be excepted from the computation of time which might otherwise prove a bar; for it should appear on the face of the pleading that, after taking out the excepted time, five years have not elapsed since the action accrued. The replication, by not stating the period, but leaving it wholly in blank, does not present a certain issue. But again, and aside from this view, the subject matter of the replication springs from the principles of the common law, or perhaps, more accurately speaking, the principles of international law, which are designed to furnish relief to a creditor, by suspending the operation of the statute, when the doors of the courts have been closed, by the existence of war, and the ordinary remedies for the collection of debts could not be enforced. These principles are eminently just and right. In the case now before us however, the Legislature has intervened, and prescribed the rule for its government^ and that of all other actions where brought within the limits of this State. I need not stop to prove that this is a matter wholly and peculiarly within the province and power of the Legislative department of the government. And the Legislature having given us its will, as found in the provisions of the Code, our only duty is to apply them to the case under consideration. During the period of the war differ*309ent acts were passed for the relief of creditors, suspending the statute of limitations, excepting certain lengths of time, from its operation, and authorizing suits to be brought in counties other than those in which the debtors resided or might be found. And these statutes, or some of them, continued in force until the Code went into operation on the first day of April 1869. The first section of Chap. 166 repeals all preceding legislation upon this subject, and this, in connection with its other provisions, clearly manifests the legislative intent. The fourth section of chapter one hundred and thirty-six provides as follows : “In computing the time within which any action of debt, detinue, covenant, assumpsit, trover, trespass or case pending at the time this act takes effect, shall be barred by any statute of limitation, the period from the 17th day of April 1861, to the first day of March 1865, shall be excluded from such computation.” The limitation to an action on a note in writing not under seal, before the war, was five years; but the fourth section extends that period nearly four years, so that an action pending on the first day of April 1869, would not be barred for nearly nine years. The period embraced by this section is tlie period of the war, designing to cover the disturbed and unsettled state of things during that time. The Legislature having given this measure of relief, and for this reason, to that class of creditors whose actions were pending on the first day of April 1869, adopted another and different rule as to actions brought after the first day of April 1869, prescribing that an action on a contract not under seal shall, if executed before that time, be barred in five years, but if executed after the passage of the act, in ten years. See sec. 6, Ch. 104 of the Code.
This legislation is explicit, and there is no mistaking its design or its application. The action in the case now before the Court, was brought on the 30th day of June 1869, after the Code went into operation, and is there*310fore subject to the said 6th sec. of Chap. 104; the action is on a note executed on the 5th day of November 1861, and no action can be maintained upon it, unless brought within five years next after the right to bring the same shall have first accrued, if the Statute is pleaded.
In this view of the subject, the Plaintiff's second replication to the second plea is wholty immaterial, and though issue was joined upon it, it should be disregarded. This disposes of all the questions of pleading in the case; a general replication having been filed to the second plea, the-parties are at issue on the plea of payment, and of usury, and of thé statute of limitations; as to the first two pleas, there is no evidence whatever: as to the plea of the statute of limitations there is. no evidence either, except the note which, when produced, proves the truth of the plea: that the action was not within five years after the right of action accrued. All the rest of the evidence certified in this case is wholly irrelevant to any one of these issues. The jury however, at the December Term 1871, on the trial, found a verdict for the Plaintiff, for the amount of his debt and the interest; and judgment was rendered for the same; Defendant moved the Court for a new trial, but the motion was refused; to this action of the Court, the Defendant excepted, and has taken an appeal to this Court. From what has been already said in the history of this case, and the discussion of its principles, it is manifest that the verdict and judgment are most clearly against the law and the evidence. During the trial four instructions were asked by the'Defendant. The first two being wholly irrelevant to any issues in the cause, as I have endeavored to present them, I need not consider them. The third instruction is this : “If the jury belieye from the evidence that more than five years elapsed from the day the note sued on fell due and became payable, until the institution of this suit, then it is barred by the statute of limitations.” This instruction the Court refused; the refusal was error; the *311instruction was pertinent to tlie issue, and sliould have been given. The fourth instruction is this: “The Court instructs the jury that after the statute of limitations began to run, it ran on until the day the order was made in this suit,- whereby the name of Oscar Callison was stricken out, and the name of Wallace Robinson inserted, as the Administrator of John Marcus Alderson.” This instruction was refused. The effect of this instruction was to fix the 15th day of October 1870, as the time when the suit was commenced against Wallace Robinson, and of course a different time during which the Statute would operate as against Oscar Callison. In this view, the instruction was properly refused. The order for the substitution of one name for the other was by consent of the parties in court, and should not be permitted to operate to the legal prejudice of either. There are exceptions taken by the Defendant to the testimony of certain witnesses, and this testimony is certified in the record; but as it is wholly irrelevant to the issues, as hereinbefore presented, they ne.ed not be considered. Tor the reasons hereinbefore stated the judgment of the Court below must be reversed, and the verdict of the jury set aside, and a new trial awarded; and the cause is remanded to the Circuit- Court of Greenbrier county, for further proceedings to be had therein, in accordance with the principles of this opinion, and the Appellant must recover his costs in this Court against the Appellee.
Haymond, President, and MOORE, Judge, concur in this opinion.