Williams v. Lenoir

• Decision Date: 30 September 1875
• Parties: WILLIAMS v. LENOIR
• Court: Tennessee Supreme Court

67 Tenn. 395

WILLIAMS

v.LENOIR

Supreme Court of Tennessee.

September Term, 1875.

FROM LOUDON.

Appeal from the Circuit Court.

W. P. WASHBURN and BAXTER & SON for plaintiff.

H. A. CHAMBERS and W. J. HICKS for defendant.

DEADERICK, J., delivered the opinion of the court.

This is a suit brought in Loudon county upon an account coming from Knox county, and was instituted under sec. 3780 of the Code. The summons issued 31st December, 1872. At May term, 1873, defendant denied, under oath, the justice of the account, pleaded a set-off amongst other defenses set up, and on the trial verdict and judgment were rendered in favor of defendant for $187, being the excess of his account over that of plaintiff's, and plaintiff has appealed to this court.

Two replications were filed to the defendant's plea of set-off--one of nil debit, the other the statute of limitations of six years, the language of the plea being “the cause of action of defendant accrued more than six years before suit brought thereon,” etc.

At September term, 1873, a motion was made to strike out the replication of the statute of limitations because it tenders an immaterial issue in the averment that defendant's cause of action was barred at the time the plea of set-off was filed, and because said replication was filed without leave of the court.

For defendant it is insisted that in cases of mutual accounts the statute, where the plea of set-off is pleaded, does not continue to run until said plea is filed, but ceases to run, upon the filing of such plea, at the time of the issuance of the summons by plaintiff. In 1 Ch. Pl., 572, it is said that “the debt attempted to be set off must be due at the time the action was brought or commenced, and not merely at the time of pleading; and it must at the former period (the time of the commencement of the action) have been a legal and subsisting debt, and not barred by the statute of limitations.”

And in Angell on Lim., 79, it is laid down that where there are cross demands between the parties which accrued nearly at the same time, both of which would be barred by the statute of limitations, and the plaintiff saved the statute by suing out process, but the defendant has not, the defendant may nevertheless set off his demand. Upon these authorities, contrary to the general rule that a party, to save the statute must himself begin the action, it is held that in cases of mutual accounts the beginning of the suit by one operates to save the statute as to the other upon the plea of set-off. Our own cases of Stone v. Duncan, 1 Head, 103, 9 Hum., 743, holding the general doctrine that a debt barred by the statute of limitations cannot be allowed as a set-off, do not conflict with the doctrine above cited. We hold, therefore, that upon a proper plea of set-off, the statute would not operate to bar defendant's claims, nor run after the commencement of the plaintiff's suit in cases of mutual accounts arising between the parties about the same time.

Under sec. 2932 of the Code the defendant in an action should obtain leave of the court to file more than one replication. But in the case of a set-off pleaded, which is in the nature of a cross action, the plaintiff as to that plea is a defendant, and his replications in substance pleas, and he may file as many as are necessary to his proper defense. Mitchell v. The State, 2 Swan, 555. The plea of the statute by a proper construction meant six years before suit brought thereon by the plea of set-off or cross action, and was therefore immaterial, and properly stricken out.

On the trial plaintiff was not allowed to testify in...