State ex rel. Johnson v. Green

Dorsey, J., delivered the opinion of the court. The record presents two questions for determination. The first is, can the plea of limitations be amended, where the amended plea is filed, before the rule day has expired ? We are of opinion that it cannot. This court have said in Wall vs. Wall, 2 Harr, and Gill, 79, that “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.” The County Court therefore erred in refusing the plaintiff’s prayer, that the amended plea of limitations should not be received. The second question is, were the court right in overruling the demurrer to this plea ? By the act of 1798, ch. 101, sub-ch. 12, sec. 4, it is enacted, that the bond given by a guardian, “shall be recorded, and shall be subject to be put in suit, and be in all respects on a footing with the bond given by an executor or administrator.” A guardian’s bond therefore, as respects pleas of limitation, is placed on precisely the same footing with testamentary and administration bonds. The time within which suits must be brought on guardians’ bonds, is then, according to the act of 1729, ch. 24, sec. 21, “twelve years after the passing said bonds.” A plea of limitations to conform to this act of assembly, must allege that twelve years have elapsed, from the passing of the bond in the declaration mentioned, before the issuing of the writ original in the cause ; or it must contain some equivalent averment. What does the. plea under consideration in this respect state? “That the debt in the condition of the writing obligatory aforesaid mentioned, hath been standing and in action above twelve years.” Now, by inspection of the bond set out in the plea, it will be seen that there is no debt mentioned in its condition. The plea therefore is utterly defective and inapplicable to such a bond; and the demurrer should have been ruled good. For the errors assigned, the judgment of the County Court is reversed ; [385] but no procedendo should issue; it being manifest that the plaintiff can obtain no judgment in his favor in the court below. Not upon the testamentary bond, because the plea of limitations is an unanswerable bar to any suit that may be brought upon it. Not upon the guardian’s bond, because, if the plea of limitations were not a conclusive bar, no recovery can be had without amending the writ; which this court on more than one occasion have determined, is not an amendment that the court below are authorised to permit. JUDGMENT REVERSED.