Shepherd v. Anderson

2 Patton & Heath 203

• Court: Court of Appeals of Virginia
• Decided: January 15, 1856
• Status: Published

Opinion

THOMPSON, J.

The court is of opinion, that the court below erred in rejecting the special plea tendered by the plaintiffs, although the matter of defence set forth and relied on might have been given in evidence under the general issue of nil debet; because the plea, according to the bill of exceptions containing the reasons of the court for its rejection, was rejected, not because the matter of defence set 'forth should be given in evidence, and availed of under the general issue, nor because of the time when the plea was tendered; but, upon the ground that it set forth no legal defence to the action, whereby the defendants were virtually precluded from availing themselves of the defence which this court holds to be a good one, by way of evidence under the general issue. Therefore, the judgment is reversed with costs, and the cause remanded for further proceedings, with instructions to the court below, either to receive the special plea, which was rejected, if again tendered, and not objected to for defect of form, or because the matter of the' plea should be given in evidence, and taken advantage of under the general issue; or to allow the defendants to give it in evidence to the jury upon the general issue of nil debet; and moreover to receive anj other proper special plea, which the defendants may be advised to tender, unless the matter thereof should be more properly availed of, by way of defence, under the general issue.

Judgment reversed.