Calvert v. Bowdoin

4 Va. 217

• Court: Court of Appeals of Virginia
• Decided: June 15, 1791
• Status: Published

Opinion

*PENDLETON, President,

deliv-

ered the resolution of the court as follows:

It is manifest, from the evidence in the record, that the act of limitations had barred the action before the suit was commenced ; for, if the time embraced in the suspending- acts be stricken out, there will still be more than five years between the date of the breach, and that of the writ. The verdict only finds that the defendant assumed in manner and form as the plaintiff has declared, and not that he assumed within five years next before the suit was commenced, which was the true point in issue. The whole issue therefore has not been found; and consequently there must have been a new trial, if the cause had depended upon that point.

But the court is of opinion, that a new trial ought not, under the circumstances, to be awarded in order to supply the deficiency in the verdict. For the evidence does not support either of the counts in the declaration, as the sums, the sort of money, and the use to which it was to be applied, contained in the receipt, differ from the statement made in the declaration ; and therefore it is plain, that such evidence never can entitle the plaintiff to a verdict upon this declaration; and, as it is not pretended that he has any other, it would be a work of supere'frogation to send it back again, in order to have the plaintiff called, or the jury instructed that the evidence does not support the declaration.

The judgment therefore is to be reversed, and judgment of nonsuit entered.