
    Elizabeth Sheets v. J. Baldwin’s Administrators.
    The plea of the statute of limitations is a defence not to he favored.
    Where an issue has heen made up, or the-defendant is in default, he will not, unless under peculiar circumstances, he allowed to put in that plea.
    This was an Action of Assumpsit, from the county of F airfield.
    The declaration contains the usual common counts. The defendants plead the general issue, and gave notice of set off. The cause was tried on these pleadings, in the court of Common Pleas, to a jury, at the February term of said court, 1842, and a verdict and judgment for the plaintiff for $2,900.
    From this judgment an appeal was perfected by the defendants to the Supreme Court; and at the last November term of said court, the counsel for the defendants submitted their motion for leave to add to the pleadings the statute of limitations and payment, and in support thereof offered the affidavit of *one of the defendants, that the [121 defence was meritorious, and that the pleas sought to be filed were omitted in the court below, by the oversight and mistake of defendant’s counsel.
    They also offered to prove that notice of this motion was served on the plaintiff, a few days before the last November term of the Supreme Court, and in time to enable her to, prepare for trial. This motion was reserved, and the question raised, is, should it be sustained ?
    H. H. Hunter, for defendants, in support of the motion.
    The statute (Swan’s Stat. 684. sec. 129) confers upon this court the power to permit this particular plea, as well as any other, to be filed as an amendment.
    To entitle a party, either plaintiff or defendant, under the law to amend, the law requires that he shall show good cause and shall pay the costs. Having done this in such way as ought, in a fair course of administering justice, to be holden by the court to be “good cause,” the granting of leave devolves upon the court as a duty, which it has no right, except by the exercise of arbitrary power, to refuse to perform. In granting the leave, the statute requires the court to “ lay the parties under such equitable rules and restrictions as they may conceive to be necessary to prevent delay. This, at first view, might seem to have reference, exclusively, to the party asking leave to amend. But such is not the intent of the provision. It relates equally to both parties. If, for instance, the plaintiff ask leave to amend his declaration, to avoid a technical variance, the doing of which would, not be a surprise on the defendant, the court, in the language of the law, “ to prevent delay,” would rule the defendant to a trial, notwithstanding the amendment. So, if the defendant asked leave to amend, the court would take care that he or the plaintiff should be ruled to-such measures as would prevent delay. But generally, delay in the administration of justice is a secondary matter — that is to say, the substantial objects of justice ought not to be sacrificed because its attain-122] ment, or the means necessary *to its attainment, may lead to some-delay in the proceedings. If the consequence of a motion is to produce delay, the court ought to be careful that the granting of it is-necessary for the ends of justice. But if the granting of the motion do not involve delay, either to give the party moving, time to avail himself of benefit under the motion, or to give the opposite party time to meet the new state of the case, it is, to my mind, difficult to conceive a sound reason, why leave to amend ought not, as a general rule, to be granted.
    Tet we have been gravely told in this case, that this particular plea is always presumed to be dishonest — that an honest man will not plead it — and that the rules of this court peremptorily forbid that it shall be pleaded, under all circumstances, out of rule.
    Whatever authorities of other courts may be found in the books, seeming to establish such a rule for their guidance, it is to be hoped that this court, which, as yet, has not adopted any such rule, (but the reverse, for years, on the circuit, as I am informed,) will never adopt it.
    There is, as I conceive, a very plain and simple rule which may be adopted, and which will tend to the advancement of justice to both parties, and leave in the hands of the court reasonable means to 'prevent injustice by an improper grant of leave to file the plea out of rule
    This rule is simply, as above intimated, to comply with what the statute requires, to wit: to require the party applying for leave to-show good cause.
    The danger to be feared, is, that the statute might be used t'o bar an-honest claim. This may be guarded against, as a general rule, by requiring the applicant to file an affidavit that the plea is meritorious, or to disclose such other facts as, in the judgment of the court, shall' be deemed “ good cause.”
    It is true, the court would still be liable to be imposed upon by ■false affidavits. But that is an incurable difficulty. And because there may be such instances of dishonesty, it is no reason why honest men should be deprived of their just rights. *The legal pre- 123 ■sumption, from a well known rule of necessity, is, that affidavits for all similar purposes are true.
    Upon these considerations, therefore, it appears to me that the only remaining question is, whether the ground laid in the affidavit, and ■arising out of the circumstances of this case, affords “ good cause.”
    It is explicitly stated in the affidavit, that the plaintiff admitted to the affiant that she had received payment of her demand (except a small part which would not be barred by the plea) from the intestate of the defendants. And further, that it was intended to have set up the defence, but that it was omitted through an oversight in the pleader who prepared the issue.
    Here, then, is matter which, if proved by a credible witness, would defeat the plaintiff’s right to recover on the merits. Under these circumstances, to cut off the defence which the law gives, seems to be extremely harsh.
    But, beyond this, it is proper to look at the other circumstances of the case. The defendants are administrators of an estate; their intestate, to whom the facts were known, by which, by possibility, a conclusive defence on the merits could be made out, is not here to communicate the necessary information; they can not be presumed to know the facts as he knew them. The character of this claim, itself, is siso important to be noticed. It is the claim of a hireling — a domestic, house servant — for 29 years’ services ; upon its face, it is preposterous to suppose that such a period of time between such parties would remain, as is claimed, wholly uncompensated. Yet, even if the intestate himself were living, who would expect that he could produce evidence ■establishing the facts of his various weekly, monthly, or yearly payments of his hired girl ?
    I insist, therefore, that if ever there was a ease, in which justice demanded that this court should exercise their discretion, favorably for a party asking leave to plead, it is this ease.
    The whole contest has been in relation to the statute of limitations : and we have, on all sides, been so much occupied with '-Uhat sub- [124 jeet, that scarcely any thing has been said about the additional notice of payment. At the same time that we moved for the one, we also moved for the other. I apprehend there can be no question about the latter.
    
      As to the character of the plaintiff’s claim, I presume the counsel will not controvert that it is as stated above.
    The court is referred to the following eases as authorities to show that, in recent times, the defence of the statute of limitations is regarded as a defence consistent with honesty and good morals — that the statute is to be construed “ like all other statutes of general utility, so as to effect the intention of the Legislature.” Davis v. Miner and wife, 1 Howard’s Miss. 190, 191; 11 Wheaton 310; 3 Peters, 278 Peck, 315.
    T. Ewing, on the same side.
    This is a motion for leave to 'amend the pleadings, by filing a plea,, or notice of the statute of limitations. The cause shown for the-amendment is sufficient if the court will suffer this plea to be filed out of rule. The 129th section of the practice act, Swan’s Stat. 684, allows, and, as we suppose, directs, the Supreme court to suffer the parties to amend their pleadings, on good cause shown, and on payment of costs, laying the parties under equitable rules — not as to the defence which they shall set up, but to prevent delay. And we do not perceive why this defence, given by statute, should be put under the ban of the court. If it be not a defence in furtherance of justice, and in prevention of wrong, why did the Legislature give it ? If it be-such defence, why should the court deny to it the ordinary indulgence given to other defences? We suppose it ought to be treated as all other forms of plea are treated.
    The statute of limitations is not only a legal defence, but it is a defence which is regarded with favor in courts of equity. They even apply it where it would not apply, under like circumstances, in a suit at law.
    The question before the court relates to a rule of practice, estab125] lished, or to be established, by our own courts, under our 4own statutes. The practice of other courts in other countries, or States, has nothing to do with it. It involves no general, and all-pervading principle. Authorities, therefore, do nothing to prove this plea ought not to be allowed. On the contrary, if courts are right in holding,, as all courts do hold, that the law giving the defence is a just law, and if we deduce from that, what is a necessary consequence, that the defence under it is a just defence, it is against principle to forbid a party to make that defence, on the Same application, and under the same circumstances, as all other just defences are allowed to be made.
    In Edward Williams’s Administrators v. The Administrators of Isaac Williams, 5 Ohio, 445, the court expresses its view in general terms, respecting the defence of the statute of limitations, in these words: “ We think such statutes should be enforced, like every other legislative act, according to the intention of the lawmaker, as expressed in the act itself.”
    P. Van Trump, for the plaintiff, argued against the motion.
    The section in our statute, upon which this motion is made, is as follows;
    “ That, when any cause is removed, by appeal, into the Supreme court, the appeal shall be tried upon the pleadings made up in the court of Common Pleas, unless for good cause shown; and, on payment of costs, the said court should permit either, or both parties, to alter their pleadings ; in which ease, such court shall lay the parties under such equitable rules and restrictions as they may conceive necessary, to prevent delay.” Swan’s Stat. 684.
    As this question has not been adjudicated in this court, it is well to look to the decisions of our sister States, upon statutes of a similar character, and of much stronger phraseology, as to the discretion of the court in granting amendments. The statute of Massachusetts is as follows;
    
      “ The court in which any civil action is pending, may, at any timer before judgment rendered therein, allow amendments, ’¡’either in [126 form or substance, of any process, pleading or proceeding, in such action, on such terms as shall be just and reasonable.” Revised Statutes, 608, sect. 22, being a republication of the act of 1784.
    Now, what are the decisions of the Supreme court of Massachusetts upon this statute, as to the plea of the statute of limitations ?
    Perkins v. Burbank, 2 Mass. 81. This was an action of assumpsit, to which the defendant had pleaded the statute of limitations in time, but defectively, the plea not having covered all the' counts in the declaration. The defendant moved the court for leave to amend his plea, so as to cover all the counts. Parsons, C. J. : “ The rule of this court, respecting amendments, authorizes the plaintiff to amend his declaration, at any time before joinder in demurrer, on paying cost, or granting a continuance, at the election of the defendant. ■ The right to amend, then, is of course. But, the rule has not taken away the discretionary power of the court to grant amendments, whenever the justice of the case shall require it.
    - “ But, I have never known the court to .go so far as to grant an amendment, or a repleader, after joinder in demurrer, when the proposed amended or new plea does not go to the merits of the action, which can not generally be said of this plea of the statute of limitations. If any equitable cause was shown, in aid of this motion, as that the defendant has lost the benefit of evidence, by the death or absence of his witnesses, or that his papers have been destroyed, or lost, amongst which was material evidence for him, the court might be ‘induced to grant it; but, without some such ground it is noi to be favored, especially when the action is still open for trial upon the general issue.” Motion denied.
    The statute of New York is as follows :
    ‘‘ The court in which any action shall be pending, shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as 121] shall be just, at any time before judgment *rendered therein.” Revised Statutes of New York, 424, of vol. 2, sect. 1.
    Hallagan v. Golden, 1 Wend. 302. After issue joined, the defendant moved for leave to add the plea of the statute of limitations, and .a notice of set off, to a plea of the general issue, which had been put in by the attorney, for the purpose of saving a default, in the absence of the defendant, and of counsel, who had been instructed as to the nature of the defence.
    Savage. C. J. “ That part of the motion which asks for leave to add a notice of set off, is granted ; but the application to add the plea of the statute of limitations is denied, with costs. Such a plea is never allowed to be added after issue joined.”
    I wish the court to take special notice of the statement of facts in the above case, in 1 Wendell, because they are precisely analogous to the state of facts detailed in the affidavit of Thomas B. Cox, one of the administrators.
    Beach v. Fulton Bank, 3 Wend. 574. The rule in New York is so strong that they will not allow, even in a court of chancery, an amendment of an answer of the defendant, setting up the statute of limitations. In the case of Beach v. Fulton Bank, the defendants asked leave to amend their answer, so that they might avail themselves of the statutes against usury. But the court of errors refused the application, and assimilated the motion to an offer to set up the statute of limitations, upon the ground of its being a strictly legal, and not un equitable defence.
    Savage, C. J., in delivering the opinion of the court against allowing the amendment, thus speaks of the analogy existing between that •motion and an offer to plead the statute of limitations : “ In the case of the Utica Insurance Company v. Scott, 6 Cowen, 606, in granting the amendment, it was expressly declared, that the defendants should not plead a new unconscionable defence. It was said, that the plea permitted to be amended, was of the same character But, in that case, *the Supreme court felt constrained to consider the ease as [128 if the demurrer had, in the first instance, been correctly decided in that court, where the judgment would have been for the plaintiffs, with leave to the defendant to amend. ' The amendment extended to the same plea. The defendant had a right, to draw a good plea to embrace the defence originally intended. So, in the case under' consideration, had the answer been adjudged defective, in not presenting the defence which the defendants intended to present, I should be of opinion that they ought so to amend as to present the defence which they attempted, unsuccessfully to rely upon. Such, however, is not their case. They .ask to prove a defence which is distinct from that which they have presented, and which they had sworn they believed to be the true one. In Hallagan v. Golden, 1 Wend. 302, the court refused liberty to the defendant to add a plea of the statute of limitations after issue joined ; .and though no reasons are given in the report, the reason assigned, when the decision was made, was that given in 1 Archb. Pr. 124, which was also referred to ; that, where leave is given to add a new plea, it will only be done under particular circumstances, and then the new plea must go to the merits ; and, therefore, the court has refused to add the plea of the statute of limitations. This plea, as was said in 2 Wils. 253, excludes the merits. In Jackson v. Varick, 2 Wend. 294, it was said the rule was uniform, if a party neglects to plead the statute of limitations, he loses his plea. It is a strict defence ; and if the party lets it slip, the court will not relieve him. Had the defendants, in these two cases, pleaded the statute of limitations defect ively, leave would probably have been given to amend according to the principle of the ease of the Utica Insurance Company v. Scott. But none of these cases afford a precedent for admitting an additional plea, or answer, of a defence which is not to be favored.”
    Jackson v. Varick, 2 Wend. 294. This was an action for mesne profits. The defendant pleaded the general issue alone, and afterwards applied for leave to add a plea of the statute of ^limitations, on [129 an excuse offered by the attorney in the cause, that he had been advised by counsel to put in such plea, without regard to the plea of the .statute of limitations. It appeared in the ease that the defendant was a purchaser, under a covenant of warranty of the premises, for the mesne profits of which the action was brought.
    Sutherland, Judge. “ It is said that the defendant will not be able-to recover from his grantor beyond six years interest on his covenant of warranty, and that, therefore, this case should form an exception to the general rule which governs these cases. We do not think so. The rule is uniform, that if a party neglects to plead the statute of limitations, he loses his plea. The statute of limitations is a strictdefence, and if the party lets it slip, the court will not relieve him. The motion is denied, with costs.”
    The statute of amendments of Maryland, is in the following words :
    “ That the court of law shall have full power and authority to> order and allow amendments to be made in all proceedings, whatsoever, before verdict, so as to bring the merits of the question between the parties fairly to trial,” etc. 1 Dorsey’s Laws of Maryland, 233, sec. 4.
    Perkins v. Perkin’s Executors, 1 Harris and McHenry, 400. In this ease, the court, after full argument, refused leave to amend a plea, of the statute of limitations already filed.
    Wall’s Executor v. Wall, 2 Harris and Gill, 79. This was an action-of debt, on a bond for the payment of money. The defendant pleaded payment, and also, the statute of limitations, within rule day, but pleaded the statute defectively. In the court below, he moved to amend the plea of the statute, which the court granted ; to reverse which decision, the ease was carried up into the court of Appeals. Archer, Judge. “ The plea of limitations has been adjudged not to-be a plea to the merits ; and the universal practice has accordingly been, never to permit it to be amended, and to demand that it should' be filed by the rule day.”
    *Lamott v. McLaughlin, 3 Har. and McH. 324. This was-an action of trespass vi et armis. The defendant pleaded the statute of limitations, but pleaded actio non accrevit infra duos armos, instead of actio non accrevit infra tres annos. The plea was demurred to, and motion made for leave to amend :
    “ The court, on full deliberation and examination of the authorities, determined that, as the plea of limitations was not a plea to the merits, it should not be received after the rule day, nor amended, if pleaded defectively.”
    State for the use of Johnson et ux. v. Green’s Executor, 4 Gill and Johnson, 381. “The plea of the statute of limitations can not be-amended, though the amended plea is filed before the rule day has expired. But if a plaintiff amends Ms declaration, the defendant may plead limitations anew.”
    It will thus he perceived by the court that, in those States having-statutory provisions similar to ours upon the subject of amendments, the courts have uniformly held, as well lately as at an early day, that a defendant could not add a plea of the statute of limitations after he had suffered the time to pass by in which he had the strict right to file such a plea. Indeed, some of the decisions have gone so far as to refuse to have the plea amended, even when the plea itself, and the amendment proposed, were both within the rule day, prescribed for pleading. It will be no answer to our objection, to file this plea, to say that these decisions are by other tribunals, and not binding upon this court. There would be some force in this proposition, were those decisions based upon the mere rules of each particular court; but when they are the offspring of a judicial construction of statutory provisions, similar to, and even stronger than our own, uniformity of practice, as well as conformity in our judicial system, imperiously demands of this court an adherence to the decisions of tribunals so respectable as are those of New York and Massachusetts.
    It will not do to establish the precedent here, that a party may makeup an issue upon the merits in the court below, experiment upon that issue there, by a full trial upon the facts, *and then, in this [131. court, move to file’ a plea which does not reach the merits, but sets up a strictly legal and technical defence.
    H. Standee,ut submitted an argument on the same side.
   Wood, Judge.

The one hundred and twenty ninth section of the practice act, (Swan’s Stat. 684,) confers upon the court full power, on an appeal, to permit a change of the pleadings by either or both the-parties, in any ease, on payment of costs, or by imposing such equitable restrictions as may be conceived necessary to prevent delay. It is a sound discretion, with which the court is invested, and should be so exercised in laying down general rules, as to promote the administration of justice, and not with a view to meet any particular case.

The transcript shows the case at bar was tried to a jury in the Common Pleas, in February, one thousand eight hundred and forty two, and if the pleadings did not then present the proper points in, the defence, all concerned had full knowledge of such deficiencies.

The cause was pending in the Supreme court, at November term, one thousand eight hundred and forty-two, and no motion was then made-to amend the pleadings, and it appears to us, from any thing shown in support of this motion, that it is, under the circumstances, entirely too late.

It is true, one of the defendants is of the opinion, the statute of limitations is a meritorious defence; but all the authorities, ancient and modern, and they are numerously cited by counsel, show, that, as a general rule, such defence is inequitable, and not to be favored, and that the court will lend its aid to effect a trial on the merits, when it will sit, at least passive, while a defendant asks its assistance, to close the door against such inquiry, and to avail himself of his own laches, in not paying the debt, by the bar imposed by the statute, unless he avails himself of such plea, within the rule day. We do not say no case can be presented where this leave to plead the statute, out of rules, should not be given; but the circumstances, to let in the defence, must be peculiar.

*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 defence, and which a party may, and must, at his peril, see that he pleads in time, or its benefits to him are lost.

The plea of payment is unnecessary in assumpsit. The defendants can avail themselves of payment under the general issue, and no change of issue should be permitted, to let in such plea.

Motion overruled.  