on a promise made the 1st May, 3 Car. I. for money lent: and after verdict, it was moved in arrest of judgment, for that it appeared by the declaration, that the cause of action did arisc above six years before the action brought. But by the court judgment was given for the plaintiff: for, though the cause of action appeared to be twenty years before the action brought, yet the plaintiff shall recover, if the defendant does not plead the statute; which was made for the ease of those who would take advantage thereof; but the court shall not give the defendant advantage thereof, if he will not plead it.(a)[1]

(a) 1 Lev. 110.

Brown

[1] In all cases, the Statute of Limitations must be pleaded. Brand. vs. Longstreet, (In Error) 1. South. Rep. 325. vs. Jones & Al. 2 Gallis. Rep. 477.

The COURT OF APPEALS of Maryland, in Maddox vs. The State, for the use of Swann, at December Term, 1819, decided, that the Act of Limitations, if relied on, must be pleaded. Merryman & Al., vs. The State, &c. 5 Harr. & Johns. Rep. 425, in note.

In order to form a Bar, the Statute of Limitations ought to be specially pleaded, or at least insisted on particularly, so that the plaintiff may show in his Replication, any fact to avoid the bar. Hudson vs. Hudson's Admr. & Al.6 Munf. Rep. 352.

Under the General Issue in Assumpsit, the defendant cannot give in evidence, the Statute of Limitations; but if he would avail himself of it, he must plead it specially. Robins vs. Harvey, 5 Conn. Rep. 335. & Vide Taylor's Admx. vs. Richards & Co., 3 Munf. Rep. 8.

The respondent in the Admiralty Court cannot avail himself of the Statute of Limitations, unless he plead it. Brown vs. Jones & Al., 2 Gallis. Rep. 477.

In the case of Maddox vs. The State, use of Swann & Al, 4 Harr. & Johns. Rep. 539, 541.) CHASE, Ch. J. delivering the Opinion of the Court, said, "It has been established, that in order to take advantage of the Act of Limitations. it must "be pleaded."

But this reason, though admitted to be true as a proposition,, at law has been denied to be satisfactory: and the true ground

A party who relies on Prescription, must plead it. Dunbar vs. Nichols, 10 Mart. Rep. 184.

Prescription is presumed to be waived, when not pleaded. Brown & Al. vs. Duplantier, 1 Mart. Rep. (N. S.) 310.

The Statute of Limitations cannot be taken advantage of in Replevin, unless pleaded. Smith vs. Williamson, 1 Har. & Johns. Rep. 147.

It cannot be given in evidence under the plea of not guilty, in an action of Slander. Brand vs. Longstreet, (In Error,) 1 South. Rep. 325.

But the Act of Limitations need not be pleaded separately to each distinct count in a declaration containing several counts upon several distinct causes of action; a General Plea to the whole declaration is sufficient. Bullen's Admr. vs. Rigdley's Ex'or. 1 Har. & Johns. Rep. 104.

"The Statute of Limitations must either be pleaded or insist"ed on by the answer, to entitle the party to the benefit of it, though the court will often, in cases of stale demands, take the time in the Statute as a guide to its discretion. (Prince "L vs. Heylin, 1 Atk. 493:)" Dey vs. Dunham, 2 Johns. Ch. Rep. 191. (PER KENT, Ch.)

A plea in bar, of the Statute of Limitations is bad, unless accompanied by an answer supporting it, by a particular denial of all the facts and circumstances charged in the bill, and which in Equity may avoid the Statute. Goodrich, Admr. &c. vs. Pendle

ton, 3 Johns. Ch. Rep. 384.

To a bill for an account, stating that no demand was made upon the defendants for twelve years; the defendant demurred generally, relying upon the Statute of Limitations, and the fact appearing on the face of the bill, that the Statute ran against the demand, the demurrer was allowed, and leave to amend was refused, Foster vs. Hodgson, 19 Ves. Rep. 181, 186.

Adverse possession for more than three years, of a Slave, is a good defence at law; and it is no answer to this objection that the defendant has not pleaded the Statute. Bell vs. Beemen & Al. In Equity,) 3 Murph. Rep. 273.

of distinction between this statute and the statute of 31 Eliz.

A plea of the Statute of Limitations will not be received unless put in, in due time; nor be permitted to be amended, if pleaded defectively. Lamott vs. M'Laughlin, 3 Harr. & M'Hen. Rep. 324. & Vide, Perkins vs. Ex'ors. of Perkins, 1 Harr. & M'Hen. Rep. 400.

A plea of the Statute of Limitations is never allowed to be added after issue joined. Hallagan ads. Golden, 1 Wend. Rep.

302.

Where the defendant has already pleaded, he will not be permitted to add the plea of the Statute of Limitations. Cox vs. Rolt, 2 Wils. Rep. 253.

Nor to withdraw a plea of payment and substitute the plea of the Statute of Limitations. The COURT said; "It has often been "held, that a plea of the Statute of Limitations will not be re"ceived, as matter of favor, by way of Amendment, after the pe"riod of pleading it as matter of right has elapsed. It must be "pleaded in the first instance. 1 Archb. Pr. 124, 2 Wils. 253.)" Coit vs. Skinner, 7 Cow. Rep. 401.

Upon motion, on affidavit of merits, &c., to set aside an inquest regularly taken at the Circuit; The COURT set aside the inquest, upon payment of costs thereof, together with the costs of resisting the motion; and imposed on the defendant, as a condition, that he should withdraw his plea of the Statute of Limitations; in analogy, as it is stated, to the practice of opening a default and permitting a defendant to plead. Fox vs. Baker, 2 Wend. Rep. 244.

In the case of Brown vs. Sutter, (1 Dall. Rep. 239.) SHIPPEN, President, said; "The Court would never open a regular judg"ment, to let in a plea of the Statute of Limitations."

The Court will not after a regular judgment interfere to give a defendant an opportunity of pleading the Statute of Limitations upon a general affidavit of defence, but if he will upon oath, declare the nature of his defence, and swear that the sum claimed was actually paid, or in any way settled and accounted for, they will not restrict him from pleading the Statute. Dutilh. vs. Miller, 2 Brown's Rep. 311.

And where the Statute of Limitations had been informally pleaded, and judgment given, on special demurrer, for the plaintiff; the Court granted the defendant leave to amend his plea,

and other statutes limiting penal actions to a definite period, is

and plead the Statute of Limitations again in proper form, upon payment of costs; his counsel stating that he had been misled by some of the precedents. Dyster vs. Battye & Al., 3 Barnew. & Ald. Rep. 453.

Where the plaintiff amends his declaration, the defendant may plead the Statute of Limitations after the amendment, if he will waive his former plea. Green vs. Gill, Ex'or. 5 Mass. Rep. 379.

A plea of the Statute of Limitations was allowed to be added to the plea of the General Issue in an action of trespass for mense profits. Peaceable vs. Whitehill & Al., 2 Yeates' Rep. 279,

And the like was allowed, in favour of an administrator, in an action of Assumpsit. Tomlin's Admr. vs. How's Admr. 1 Virg. Rep. (Gilm.) 1.

So in debt, against administrators. Reid vs. Admrs. of Hester, Cam. & Norw. Rep. 488.

After Issue joined and the cause set down for hearing, the defendant in Chancery may be permitted for good cause shewn, to amend his answer, and to plead the Statutes of Frauds and Limitations. Jackson's Assignees vs. Cutright & Al., 5 Munf. Rep. 308.

After a plea of the Statute of Limitations to a bill for an account and discovery, has been, together with an accompanying answer over-ruled, and the defendant ordered to put in a full and perfect answer, he will not be allowed to repeat in his second answer, the same matter contained in the plea which had been over-ruled, though he add matter in his second answer sufficient to sustain the defence upon the Statute; but he must put in a full and perfect answer. Murrays vs. Coster & Al. (In Error.) 4 Cowen's Rep. 617. Coster & Al. vs. Murrays, 7 Johns. Ch. Rep. 167.

In the case of M' Clure, late Sheriff, &c. vs. Erwin & Al. (3 Cow. Rep. 313.) the defendants were sued as sureties on a bond given by the gaoler to the plaintiff as Sheriff, &c. The declaration among other things stated that a prisoner had been committed to gaol on a Ca. Sa., and that the gaoler had negligently suffered him to escape; and that a suit had been brought, and a judgment recovered, against the said plaintiff in consequence of said escape. Plea, that the said Sheriff was not sued within one year from the time of the said escape, and that he neglected to avail bimself of the Limitation of the Statute in that behalf; and, that therefore, the said judgment was recovered against the said Sheriff in his

supposed to be, because the statute 21 Jac. I. c. 16. limits those

own wrong and by his own default, and concluded with a verification. Demurrer and Joinder in Demurrer; Held, that this Plea was good in form but bad in substance, and that it was no defence to the present suit that the Sheriff had neglected in the suit against him for the escape to avail himself of the Limitation of the Statute.

Though length of time may be an equitable bar, in analogy to the Statute of Limitations, to a bill to redeem; yet the respondent cannot take advantage of it on demurrer, but must insist on it by his answer, in order to give the petitioner an opportunity to shew, on the hearing, that he is within the savings of the Statute. Bulkley vs. Bulkley, 2 Day's Rep. 363.

Corporations, as well as private persons, may plead the Statute of Limitations. Kanes vs. Bloodgood & Al., 7 Johns. Ch. Rep. 129.

The defendant to an attachment in Chancery in Virginia, may plead the Statute of Limitations without answer. Wilson vs. Koontz, 7 Cranch's Rep. 202.

“A declaration need not set forth the circumstances which take "the case out of the Statute of Limitations." (Per MARSHALL, CH. J.) Mandeville & Al., vs. Wilson, 5 Cranch's Rep. 18.

In an action of debt on a foreign judgment stating the foundation of the judgment to be a specialty, the Statute of Limitations is not a good plea. Richards, Adm'r. &c. vs. Bickley, Adm'r. &c. 13 Serg. & R. Rep. 395..

A plea of the Statute of Limitations of the state, where the contract is made, is no bar to a suit brought in a foreign tribunal to enforce that contract. But a plea of the Statute of Limitations of the state, where the suit is brought, is a good bar. Le Roy & Al., vs. Crowninshield, 2 Mason Rep. 151. & Vide Pearsall & Al vs. Dwight & Al., 2 Mass. Rep. 84. Ruggles vs. Keeler, 3 Johns Rep. 263. & Vide Atwater's Adm'r. vs. Townsend, 4 Conn. Rep. 47. Medbury vs. Hopkins, 3 Conn. Rep. 472. Hull vs. Minor, 2 Root's Rep. 223. Nash vs. Tupper, 1 Caines' Rep.

402.

If an admission, sufficient to take a case out of the Statute of Limitations be made to an executor or administrator, there needs no special count to be made in such case, although the English