Harper v. Hampton

1 H. & J. 453

• Court: General Court of Virginia
• Decided: October 15, 1803
• Status: Published

Opinion

Done, J.

(a). A distinction has been taken between the right anti the remedy. They are co-extensive, and if the remedy is barred it operates every where. The cases cited bear very slightly upon the case at bar. The defendant might have pleaded specially the act of limitations of Pennsylvania.

The suit is upon a cause of action said to have accrued in Maryland. The cause of action attached to the person, and follows the person. The act of limitation of Maryland has been pleaded by the defendant. The plaintiff to avoid it replied the savings of the act. This is correct pleading, and is not a departure from the declaration. The defendant introduces in his rejoinder the act of limitations of Pennsylvania, which is an abandonment of his first defence, and of course is a fatal departure.

The Covet are therefore of opinion, upon each of the. demurrers, that the rejoinder of the defendant is not in law a sufficient answer to the replication of the plaintiff in this cause, but that the matter alleged in the. rejoinder is a departure from *hc plea of the de-fendanij and therefore the court give judgment for the plaintiff on the demurrers in this cause.

A juror was withdrawn by consent, and the cause continued.

Sprigg, J. concurred.