Peery's adm'r v. Peery

Citations

• 26 Va. 320
• 26 Gratt. 320

Syllabus

<p>I. Though a plaintiff moves the court, before the jury retires to consider of their verdict, to exclude certain evidence which had been given on the trial, which the court refuses to do, if notice of a purpose to except to the ruling of the court is not given until the jury come into court with their verdict, the exception is too late.</p> <p>II. H recovers a judgment against W and P. Afterwards W and H die, and K qualifies as the executor of W and the administrator of H. As administrator of H, K sues out a scire facias to revive the judgment against P the surviving obligor, and he appears and files a general plea of payment, without stating the nature of the payment. He proves that H in his lifetime assigned the judgment to D, who was a debtor of T, who was a debtor of W; and that under an agreement between T and D that T would take in payment of his debt, any debt on W which K would take in payment of T’s debt to W, D obtained this judgment from H, and assigned it to K, who credited the amount on T’s debt to W. There was a verdict for the defendant, and on motion for a new trial, Held :</p> <p>1. The evidence should have been excluded from the jury, the defendant’s plea not describing the payment so as to give plaintiff notice of its nature, as required by the statute, Code , of i860, ch. 172, g 4.</p> <p>2. Ii having taken the assignment to himself, and credited the amount upon the debt due from T to W, he made himself' liable to his testator’s estate for that amount; but having taken the assignment to himself, he was the owner of the judgment, and might as administrator of H maintain the scire facias to revive the judgment at law.</p> <p>3. The arrangement does not constitute a payment of the judgment at law, though it may constitute grounds of equities between W and P.</p>