Harris v. Harris' ex'or

Citations

• 23 Va. 737

Syllabus

<p>1. In debt on bonds by the executor of H agaiust G, G tenders a special plea: That at the time of the exeeuiion of said bonds he owed nothing' to tl, and the consideration of said bonds was as follows : In 1S66, four suits at law were pending against him in the county, naming plaintiffs, to recover damages for trespass during the civil war in impressing horses, &c. by him, under orders of the Confederate government, he being an officer of the army under that government. He did not regard these claims as debts or just liabilities on his part, but owing to the unfavourable and unjust constitution of courts and juries at that time, he feared they might be enforced against his property. He was informed by his counsel that the result was uncertain, that judgmeut had been given in similar cases in Berkeley county. That he conferred with his father, who warmly advised him to secure his property against these claims. The plan adopted was for him to execute to his father the bonds sued on, ante-dated, with the distinct understanding-that they were only to be used a'nd treated as obligations to claim priority over the plaintiffs in case of necessity, and if unnecessary, were to be handed back to the defendant; said bonds were executed under this understanding, and upon no other consideration. Wherefore said G and his executor were bound to re■deliver said bonds to defendant, because said suits had been dismissed in 18G7, before the death of G, and the bonds were therefore null and void, and to be surrendered. Therefore he has sustained damages, &c. On the motion of the plaintiff the plea was rejected. Held :</p> <p>1, The plea was properly rejected, because no issue, either by general or special replication, could be made up upon it.</p> <p>H. It wasnotgood as a plea under the statute, for failure of consideration. The statute only applies to eases where the consideration was originally valuable, and not where there was no consideration.</p> <p>3. Such a defence cannot be