Coit v. Skinner — 7 Cow. 401

Majority

p. 400

Coit against Skinner.

Headnote

A plea of the to^tionswU^not 1)6 allowed on place of a plea of payment,

A motion was made, in behalf of the defendant in this cause, for leave to strike out the plea of payment, and plead the statute of limitations. The motion was founded on an affidavit of the defendant, that he had a good and substantial defense upon the merits, as advised by counsel: but that owing to the occurrence of the transactions on

p. 401

which the defense was founded, at a remote period, he apprehfended it would be difficult, if not impossible to prove urL^ess he should be allowed to plead the limitation, his rights would possibly be injured.

H. M. Western, for the motion.

J. Coit, contra.

It has often been held, that a plea of the statute of limitations will not be received, as a matter of favor, by way of amendment, after the period of pleading it as matter of right has elapsed. It must be pleaded in the first instance. (1 Archb. Pr. 124; 2 Wils. 253.)

Motion denied.