
    MICHAEL KNOEDLER vs. WILLIAM A. MELOY, EXECUTOR OF ANNIE G. WORCESTER.
    At Law. —
    No. 12892.
    I. A joinder in a demurrer to a declaration produces an issue of law, and tlie practice in regard to noticing it for trial, and entering it upon the calendar, is the same as in cases in which there is an issue of fact.
    II. Where there is an issue of fact as well as of law, one notice will he sufficient, if the canse is regularly placed upon the calendar.
    III. A plea of the statute of limitations is now regarded with the same respect as other legal defenses, and where the defendant has demurred to a declaration, and the demurrer overruled, and leave granted to plead “as advised,” and a plea of the statute is accordingly filed, it is irregular to strike it out upon affidavits that plaintiff has a. good cause of action.
    STATEMENT OE THE CASE.
    Action of assumpsit commenced on the first day of September, 1874. The declaration contained four counts: the first, second, and third being upon three several promissory notes for $1,000 each, dated 16th of June, 1870, and payable in six, nine, and twelve months ; the fourth count was for rent in arrear. The defendant demurred to the first three counts, and plead the statute of limitations to the fourth. On the 12th of November, 1874, the plaintiff joined issue on the demurrer, and on the same day served the defendant’s attorney with notice that on the 14th, then ensuing, he would call the demurrer up for argument. On the 28th of the same month, in the absence of defendant’s counsel, the plaintiff obtained the order of the • court overruling the demurrer. The case had not been regularly placed upon the calendar for the trial of causes by a note of issue, nor had notice of trial been served by either party ten days before the commencement of the term. Before any other step in the cause was taken, on the 4th day of December, 1874, the defendant filed a motion to set aside the order overruling the demurrer for irregularity, because the issue of law had not been placed upon the calendar by a notice of ten days prior to the commencement of the term; the said motion also asked for leave to plead, as advised, in case the application to set aside for irregularity should be denied. The court refused to grant the motion in respect of the irregularity, but did set aside the order overruling the demurrer in order to allow the defendant to plead; and accordingly an order was made granting the defendant leave to plead “ as advised,” and forthwith he interposed a plea of the statute of limitations. This order was made on the 19th day of December, 1874. On the 26th of the same month the plaintiff filed certain affidavits in regard, to the merits ofhis cause of action, and thereupon the court amended the order of the 19 th, and struck out the plea of the statute of limitations. *
    The 7th section of the act organizing this court reads as follows:
    “And be it further enacted, that all issues of fact triable by a jury or by the court shall be tried before a single justice; when the trial is by jury, at a circuit court; and when the trial is without a jury, at a circuit court or special term. Issues of law may be tried at a circuit court or special term. At any time after issue, and at least ten days before the sitting of the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least four days before the sittiug of the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon a calendar according to the date of the issue.”
    Judgment having been subsequently rendered for plaintiff, the case is brought here by the defendant on appeal, and he alleges for error the two following points:
    1st. That an issue of law cannot be brought to trial except on ten days’ notice previous to the sitting of the court, and having the case duly placed upon the calendar.
    2d. Where a demurrer is overruled with leave to plead over, the court has no discretionary power to preclude the party from any lawful defense of the action.
    
      A. S. Worthington for plaintiff.
    
      
      Wm. A. Meloy for defendant:
    The plain and reasonable construction of the statute places -the defense of limitations on exactly the same footing with any other defense, however meritorious, and this was at the first admitted by the courts and enforced in their practice. Subsequently equitable notions crept in, and so far influenced the courts that they first divided in opinion respecting the meritorious character of the defense, then determined that it was not meritorious, but technical, not worthy to be favored ■ wherefore, since they could not abrogate the statute by clos. ing the door absolutely to this defense, they narrowed the passage in every possible way, and distinguished between it and other defense which they declared as meritorious. In practice, then, when the suitor by any default, neglect, or failure on his part, lost the right to plead and sought restora. tion through the grace of the courts, they imposed conditions •on their grant of favor, and allowed him to plead only what they had classed as meritorious defenses. This exclusion operated only when the party was in default.
   Mr. Justice MacArthur

delivered the opinion of the court:

By reference to the statute, it is clear that issues of law are the subject of trial. The language of the act is, “ Issues of law may be tried at a circuit court or special term.” And, again, “At any time after issue, and at least ten days before the sitting of the court, either party may give notice of trial.”

It is also provided that a note of issue shall be furnished to the clerk in order to enter the cause upon the trial calendar, and this is plainly as applicable to issues of law as to issues of fact. ' By the express words of this section, therefore, an issue of law can only be tried upon a notice of ten days before the term, and having the cause regularly placed upon •the calendar by the clerk. This is in exact conformity to the practice prescribed in Buies 42 to 47, inclusive, which were in force at that time. When there is an issue of fact as well as of law, one notice will be sufficient, and of course it will generally be expedient to have the demurrer disposed of first. That a joinder in demurrer produces an issue of law cannot now be a matter of any doubt, and the practice in regard to-noticing it for trial, and entering it upon the calendar of the court where the cause is pending, must be the same as in cases-in which there is an issue of fact. Rule 47, recently adopted, as far as it contravenes the statute in this respect, is inoperative and void.

The record in this case shows that the plaintiff joined issue-to the demurrer on the 12th of November, 1874, and gave a-two days’ notice of argument. The cause had never been entered on the calendar. Upon this notice, and in the absence ■of the defendant, the plaintiff obtained the order of the court-overruling the demurrer. We think the plaintiff could not proceed to argument or trial without having given notice at least ten days before the sitting of the court, as is required by the act of Congress; and the court ought to have set the order aside for this irregularity. The point is not of practical importance in this case, for the court below set the order aside, and allowed the defendant leave to plead as advised.. The construction we have put on the statute and rules of court relate, however, to an important point in practice, which ought no longer to be left in uncertainty. We have, therefore, passed upon the point.

The defendant, having obtained leave to plead without any qualification except as advised, interposed a plea of the statute of limitations, which the court afterward struck out upon the application of plaintiff, and upon affidavits furnished by the latter explaining and sustaining his cause of action. The law of the District of Columbia in respect of the limitations of actions is the Maryland act of April, 1715, chap. 23. Its purport is that all actions of this kind shall be sued within three years from the time the right of action accrued, and. not after.” The decisions in Maryland are founded on rules-of court requiring that if the defendant neglect to plead by the rule-day, he shall not plead the act of limitations unless the declaration shall be amended. There is no such rule here, and the decisions are, therefore, not in point. These decisions are also inapplicable to this case, for the reason that defendant was not in default for want of a plea.

Terms are sometimes imposed upon a defendant as a condition of relieving him from the consequences of his own neglect. A demurrer which goes to the substance of the action and upon which issue has been joined ought, not to place a. party who interposes it on the same footing with one who has taken no care to comply with the rules of court. If the decision upon the demurrer is against him, he ought not to be precluded afterward from any lawful defense he may have in bar of the action. The plea is now regarded with the same favor as other defenses. The ancient prejudices-have passed away, and the prevalence of judicial opinion is now in favor of a just and reasonable construction of the statute. The Supreme Court of the United States have sanctioned this doctrine perhaps more clearly than any other tribunal.

In Clemenson vs. Williams, 8 Cranch, 72, Chief Justice Marshall declares that “ the statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away.” In Bell vs. Morrison, 1 Pet., 351, the language of the court is still more expressive, Mr. Justice Story saying that it is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from the lapse of time, but to afford security against stale demands-after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of the witnesses.” To the same effect are McClury vs. Silliman, 13 Pet., 270, and United States vs. Wilder, 13 Wall., 254.

The expediency and justice of the act of limitations are now generally recognized, and the authority of decisions discordant with its policy have been greatly impaired. The present case comes within the express language of the opinion in Bell vs. Morrison, for here the party who made the notes, and upon whose estate they are sought to be charged, is “ incapable of explanation by reason of her death.”

We think the court should have permitted the plea to stand. The judgment must therefore be reversed, and all proceedings in the case set aside from and after the joinder in demurrer.  