Littlejohn v. Williams, 21 N.C. 343, 1 Dev. & Bat. Eq. 343 (1836)

June 1836 · Supreme Court of North Carolina

21 N.C. 343, 1 Dev. & Bat. Eq. 343

THOMAS B. LITTLEJOHN et al. v. LEWIS WILLIAMS et al. Exrs.

June, 1836.

A plea to a bill of revivor, that the cause of action arose more than twenty years before the filing of the original bill, and that after the abatement of the original bill, the bill of revivor was not filed within the proper time, and that the same was therefore barred by the statute of limitations, and the length of time between the abatement of the original suit, and the filing of the bill of revivor, is double, and therefore bad.

After the cause was remanded to the Court of Equity for Rowan, at December term, 1833, (see 2 Dev. Eq. Rep. 380), it was continued there until October term, 1835, when the plaintiffs set the plea down for argument. His Honor Judge Norwood, fro forma, sustained the plea, whereupon the plaintiffs appealed. The plea was, that the cause of action arose more than twenty years before the filing of the original bill, and that after the abatement of the original bill, the bill of revivor was not filed within the proper time, and that the same was therefore barred by the statute of limitations, and the length of time between the abatement and the original suit, and the filing of the bill of revivor.

JVash, for the plaintiffs.

Pearson, for the defendants.

Per Curiam.

The plea in this case is double, and must be overruled. The defence proper for a plea, must be such as reduces the case to a particular point which will bar the plaintiff’s demand. It is then of use, because by having the judgment of the Court upon that point, the parties are saved the expense of the examination. A plea does not deny the equity, but brings forward a fact or a series of circumstances, forming in their combined result some one fact, which displaces the equity. If there be two defences offered by a plea, they cannot be separated, and one only allowed.

The decree below allowing the plea, and dismissing the bill, is overruled with costs, and it is ordered that the suit, and the proceedings therein, do stand revived against Lewis Williams and Joseph Williams, executors of Joseph Williams the original defendant, and be and stand in the same plight and condition as they were in when the sa'^ su't abated. And the cause is remanded to the Court of Equity for the County of Rowan, for further proceedings.

Per Curiam. Judgment reversed.