Majority
p. 227Wolcott vs. McFarlan. moved for leave to add a plea of the statute of limitations to the plea of not guilty already pleaded. The action was slander. Issue was joined in August last, and the cause had been noticed for one circuit, but was not tried. The defendant’s attorney swore that he was instructed to plead the statute, but omitted to do so by inadvertence. It was alleged that the limitation of two years had expired a few days before the declaration was served. read an affidavit of the plaintiff’s attorney that he was instructed to brihg the suit nearly two months before the declaration was served, and should have commenced the action without delay if he had supposed it necessary to save the statute.
Headnote
The statute of limitations is a defence not favored, and the party intending to rely upon it must plead it in the first instance. He will not be allowed to amend by adding such plea.D. Burwell, for the defendant,
P. Cagger, contra,
There have been two slips in this case; one by the plaintiff’s attorney in not commencing the suit at once in pursuance of instructions; and the other by the defendant’s attorney in not pleading the statute in pursuance of his instructions. This puts the parties just where they would have stood had there been no lache on either side. But independently of that fact, this motion cannot be granted. The statute of limitations is a defence which is not favored, and if the party intends to rely on it, he must plead it in the first instance. He will not be allowed to amend by adding such a plea. The cases are cited in Lovett v. Cowman, (ante, p. 223,) which has just been decided.
Motion denied.