Smith v. Hutchinson

Citations

• 78 Va. 683
• 1884 Va. LEXIS 41

Syllabus

<p>1. Practice at Common Law-Statute of limitations-Personal plea.The defence of the statute of limitations is a personal privilege, and to be made availing must be pleaded by defendants. The court has no power to interpose a plea ex mero motu.</p> <p>2. Idem-Scire facias.-Even in a case where no execution issued on judgment within the year, and which is prima facie barred, the practice is for clerk to issue scire facias, and for court to give judgment according to the writ, leaving defendant to plead the statute or not, at his own option, and plaintiff to reply the exceptions as far as applicable. Acts 1874, chapter 144, section 6.</p> <p>3. Idem-Appeal from county courts-When cause remanded.&emdash;On reversal or affirmance of judgment of county court, the cause must be retained by circuit court and not remanded, except by consent or for cause.Code 1873, chapter 178, section 25.</p> <p>4. Idem-Idem-Order.-Remanding order in such case should show either • that it was remanded by consent of parties or for good cause shown.</p> <p>5. Appellate Court-Omnia prcesumuntur rite acta esse.&emdash;Where whole matter of law and fact is left to court below and it decides on mere credibility of witnesses, appellate court will not disturb its decision, unless palpably wrong. But this principle applies not where it decided upon a rule of law supposed right, but in fact wrong. Cheatham v. Hatcher, 30 Gratt. 56.</p>