
    *Backhouse’s Adm’x v. Jones’s Ex’or.
    [April, 1805.]
    Pleading: — Statute of Limitations — Office Judgment..— The defendant cannot plead the act of limitations upon setting- aside the office judgment, after the next succeeding term, without g-ood cause is shewn.
    In assumpsit for goods sold and delivered, the defendant suffered an office judgment and writ of enquiry to be awarded at the rules : which, not being set aside at the succeeding term of the court, when the cause was afterwards called for trial at another term, the defendant then offered to jilead the act of limitations, which the judge refused ; but, upon being informed, by the bar, that the practice had been uniformly otherwise in that court, the plea was received. And a verdict and judgment being thereupon rendered for the defendant, the plaintiff appealed to the court of appeals.
    
      
      Statute of Limitations — Plea of — To What Time Refers. — It was held in Smith v. Walker, 1 Wash. 135, that the plea of the act or limitations was bad. for referring to the time of the plea pleaded, instead of that of the institution of the suit; and asimilar plea was held to be bad, and issue joined thereupon immaterial in the case of Henderson v. Foote, 3 Call 248. To this point, the principal case is cited in Austin v. Jones, Gilm. 354. See foot-note to Henderson v. Foote, 3 Call 248.
    
   PER CUR.

There is error in this, 1. That the defendant was permitted to plead the act of limitations, without good cause shewn, why he had not appeared and pleaded the same at the rules in the clerk’s office, or at the. next term of the court after the office judgment was obtained, and the writ of en-quiry awarded. 2. That the plea, not referring to the inception of the suit, must be taken to relate to the time of pleading ; and, in that view, it was immaterial, according to the case of Smith v. Walker, 1 Wash. 135. The judgment is therefore to be reversed; and a repleader awarded, with leave to plead the general issue.

The entry on the order book was as follows :

“The court is of opinion that the said judgment is erroneous in this, that the appel-lee was permitted to plead the act of limitations, and non-assumpsit, within five years after an office judgment confirmed and writ of enquiry awarded, without good and sufficient cause shewn for his not having 'appeared and plead at the rules, in due time, or at the next succeeding term, according to law; and in this also, that *the five years were confined to the time of pleading, instead of the time when the action accrued; and that the issue tried was immaterial. Therefore, it is considered that the said judgment be reversed and annulled, and that the appellants recover against the ap-pellee the costs expended as well by them as by the said' Rebecca, in the prosecution of the appeal aforesaid here, to be levied, &c. And it is ordered, that all the proceedings, subsequent to the office judgment, be set aside; that the appellee be at liberty to appear and plead the general issue, and that a new trial be had in the cause ; or, in case of default, that the writ of enquiry be executed.”  