
    Henry Newsom’s Adm’r v. Michael Ran.
    The defendant is not excused from filing his plea within the rule because the plaintiff has failed to comply with an order to give security for costs.
    A writ may be indorsed for costs, by order of court, after service and return; and if such order appear of record, scire facias will lie against the surety.
    It is within the discretion of the court of common pleas to receive or reject a plea of the statute of limitations after the rule day for pleading has expired and the party is in default.
    This is a writ of error to the Supreme Court for Logan county.
    The original action was assumpsit. The declaration sets forth that the said Henry Newsom, in his life time, under and by virtue of a power of attorney, executed by the plaintiff, Michael Ran, and his wife, Chloe Ran, received the distributive share of the said Michael, in right of his said wife, in the estate of James Newsom, deceased, then in the hands of the court or its proper officers in Champaign county, amounting to some three-hundred dollars. It also contains the common counts for money had and received, etc. Plea, the general issue.
    At the April term, 1848, of the common pleas, judgment-was rendered for plaintiff.
    The defendant moved for a new trial, which motion was overruled.
    In the progress of the trial, sundry bills of exceptions were-tendered by defendant’s attorney, which were sealed by the-court, and made part of the record.
    The case was heard in the supreme court for Logan county,, at the June term, 1848, upon errors assigned, sixteen in number, and the judgment of the court of common pleas was affirmed.
    It is brought into this court by writ of error to the supreme court for the county, the errors assigned being,
    First, That the declaration and matters therein contained are not sufficient in law to maintain the action.
    Second, That the court erred in affirming the judgment of the court of common pleas.
    
      Third, That judgment was rendered for the defendant in-error, when by law it should have been rendered for the plaintiff in error.
    The material facts, as they appear from the record, to determine the questions of law arising upon which the writ of error was allowed, are, that the plaintiff below, being a non-resident of the county, was required to give security for costs, in ninety days from the time when the order was granted, which was at the May term, 1847. The order was complied with on the 25th of the same May, by making the usual indorsement on. the writ, the declaration having been filed the day previous. July 22d, 1847, after the expiration of the rule day for plead ing, the defendant filed his demurrer to the first count in the •declaration, and three special pleas of the statute of limitations; •one claiming a bar of six years, the others of four years. At the succeeding term, the demurrer and pleas were stricken from the files, and the defendant had leave to plead the general issue.
    
      B. Stanton, for plaintiff in error.
    The defendant below was not bound to plead till the plaintiff had given security for costs; nor was he required to examine the files to ascertain whether security had been entered, till after the expiration of the rule. The defendant is not required to incur the expense of preparing for trial, when it is uncertain whether the security will be given. And in this case it never was, in fact, given, since an indorsement on the writ after service and return, is not a compliance with the order. Consequently the defendant was not in default when he interposed the plea of the statute of limitations. Noble v. Shearer, 6 Ohio Rep. 426; McVicker v. Ludlow’s Heirs, 1 and 2 Ohio Rep. Cond. 398.
    The pleas interposed were issuable pleas. They tendered an issue to the plaintiff. Courts are disposed to evade the general statute of limitatioms, regarding it as an inequitable defense. But an administrator may rightfully avail himself of the statute which requires claims to be prosecuted within four years from the granting of administration. It is to enable him to settle up the estate. But the claim still subsists against the heirs. Mattoon v. Clapp’s Adm’rs, 8 Ohio Rep. 248. The administrator is bound to make the defense, and neglecting to do so, he makes himself personally reponsible for the amount of the judgment. Brown v. Anderson, 13 Mass. Rep. 201; Scott v. Hancock, Ibid. 162; Thompson v. Brown, 16 Mass. Rep. 172; Emerson v. Thompson, 16 Mass. Rep. 429; Heath v. Watts, 5 Pick. Rep. 140.
    
      
      Wm. Lawrence and 8. W Andrews, for defendant.
    We maintain, in reply to the argument for the plaintiff in error,
    1. That the rule for costs did not extend, expressly or by implication, the rule for pleading. The rules for pleading are general, and operate upon all cases, unless modified by some special rule. The rule for costs is a special rule, having in view a specific object, and beyond that purpose no effect. Both are subsisting rules, not repugnant to each other, and the one does not in terms or by implication affect the other. All special rules are subject to the operation of the general ones, just as all special laws are controlled by the general ones, unless otherwise provided. Both must be construed together in a manner to give full effect to each. 6 Dane’s Ab. Ch. 196, art. 5 ; 9 Bacon Ab. Tit. Stat. I, 3 — 11. The hazard of incurring the ixpense incident upon a preparation for trial, may be avoided, by extending the rule day' for pleading when the rule is entered, requiring security for costs.
    2. The indorsement of the writ for costs after service, under the rule for costs, is a compliance with the rule, and the defendant below was bound to plead. This is not very material, for if the rule for costs was not complied with, the defendant below, under the operation of the rules for pleading, was bound to plead. The only effect of a failure to comply with a rule for costs is, that the plaintiff may be non-suited, unless his default is in some way excused. But the defendant below waived his right to object to the form in which security was put in, by pleading, by moving to open up his default, by omitting to move a non-suit, and by assigning upon the record, as a reason for asking to open up the default, that his plea was filed after the security was put in, and before the expiration of the ninety day rule. McVicker v. Ludlow's Heirs, 1 and 2 Ohio Rep. Cond. 398; 2 Mass. Rep. 102; 5 Mass. Rep. 98. But at all events, the rule for costs was abundantly complied with by the indorsement, though after service. Wright’s Rep. 177; 6 and 7 Ohio Rep. Cond. 180; 1 and 2 Ohio Rep. Cond. 399.
    3. The defendant below being in default, the court was sustained by numerous authorities, by principle and sound reason, in refusing to allow the plea of the administrator’s statute of limitations to be'filed, or rather, in striking from the files those which had been improperly placed there. It is an inequitable plea, and should not be allowed where the party has failed to avail himself of it in the first instance. All the reasons which exist for applying this rule to the general statute of limitations, exist also for applying it to the administrator’s statute. Sheets v. Baldwin’s Adm’r, 12 Ohio Rep. 132. The only reason assigned in argument for permitting a plea of the administrator’s statute after default is, that it is different in principle from the general statute — that the general statute extinguishes the remedy, and is hence inequitable, while the administrator’s statute merely discharges the administrator, for the purpose of settling the estate, but the claim is still valid against assets in the hands of heirs. Now, it so happens that, as to the class of claims in this case, the law gives no remedy against assets in the hands of heirs. This is clear, (Swan’s Stat. 382, sec. 232,) and hence no reason exists for any distinction between the two statutes. So far as shown in argument, the rule contended for by the plaintiff in error, has never been applied to the Mass. Stat. of 1788, from which our statute was taken.
   Spalding, J.

We have examined the declaration filed in the court below, and are satisfied that it i# sufficient, in all respects, to sustain the action.

The second assignment, embracing, as it does, the consideration of sixteen distinct propositions, in the nature of objections to the proceedings in the common pleas, could not be disposed of so readily, if counsel for plaintiff in error had not, in his argument, confined his attention to the following inquiries, which he probably deems the only questions in the case:

1st. Was the defendant in default by not pleading before the plaintiff had complied with a rule requiring him to give securi ty for costs ?

2d. If in default, had the court a right to shut out the plea of the statute of limitations ?

It appears that the plaintiff below was a non-resident. The writ, issued April 26, 1847, was served and returned without an indorser for costs. On the third day of May, 1847, the plaintiff was ruled to give security for costs in ninety days. On the 25th day of May, the following indorsement was made on the writ:

“ I acknowledge myself security for costs in this case.
“J. Leister.”

On the 24th day of May, 1847, the plaintiff filed his declaration. On the 22d day of July, and after the day for pleading, according to the rules of court, had passed by, the defendant filed his demurrer to the first count in plaintiff’s declaration, and three special pleas of the statute of limitations; one setting up a bar of six years, and the two others claiming that suit was not commenced within four years from the day on which letters testamentary issued to defendant.

At the August term, 1847, the court, on motion, struck off the demurrer and pleas thus filed by defendant, but permitted him to plead the general issue, and that only.

As to the first proposition, we are of opinion that the 'failure of plaintiff to enter bail for costs, would furnish no sufficient excuse to the defendant for failing to plead within the rule. To hold otherwise would be in effect to rule, that the violation of an order of court by one party, would justify the violation of another and different rule by the opposite party; and, when carried out, would lead a court into inextricable difficulty.

The only safe course is, for the courts to require a strict compliance with their rules and orders by all parties.

In the case under consideration, the defendant should have interposed his plea within the time limited by the rules of the court of common pleas of Logan county. If the plaintiff had failed, for more than ninety days, to enter bail for costs, he would have been turned out of court, on the motion of defendant.

The expense or inconvenience attending the filing of a plea, is a suggestion not worthy of serious consideration.

But in this case, it seems the plaintiff did procure a responsible free-holder in the county, to indorse the writ for costs, before the rule for pleading had expired.

It is only objected that a bond was not taken, for it is claimed that an indorsement of the writ, after service, was not a compliance with the rule.

This court has never yet decided that an indorsement of the writ, after service, did not bind the surety for the costs of suit. On the contrary, it was diréctly decided on the circuit, in Noble v. Markly et al. (Wright’s Rep. 177), that such an indorsement was obligatory.

The same case was subsequently brought into bank, where it was decided that the remedy was not by scire facias, on that indorsement, as it formed no part of the record.

But Judge Wood, in giving the opinion of the court, adds, “We do not say that such an indorsement is not a contract, which would obligate the indorsers to pay the costs.” 6 Ohio Rep. 428.

Eor the convenience of the profession we shall hold, that an indorsement of the writ, after service and return, will bind the surety for the costs; and if the order for such indorsement be entered upon the journal, a scire facias may be sustained against such surety.'

The default of the defendant being established, it only remains to inquire, was it error in the common pleas to refuse to him the privilege of interposing a plea of the statute of limitations ?

This is not a plea to the merits, and consequently is not ordinarily received after the rule day. See Sheets v. Baldwin’s Adm’rs, 12 Ohio Rep. 120, and numerous authorities therein cited.

The court say, in that case, that the authorities show a concurrent course of decisions, in the English and American courts, that after the expiration of the rule day, or when the issue is closed, or a party is in default, the plea of the statute-of limitations ought not to be permitted; that it is a strict legal defense, and which a party may, and must, at his peril, see that he pleads in time, or its benefits to him are lost.”

We are unable to take any distinction, in principle, between the administrator’s bar of four years, and the general limitation of actions.

Extraordinary circumstances will often demand a relaxation of the rule in both cases, and perhaps oftener in the case of executors and administrators than in any other.

The whole matter rests in the sound discretion of the court in which the pleas are to be entered, and we have no fear that this discretion will be abused. We are satisfied that it has not been in the present case.

Judgment affirmed.  