Campbell v. Hester's Executor, 1 N.C. 78, 1 Tay. 78 (1800)

Oct. 1800 · North Carolina Superior Court

1 N.C. 78, 1 Tay. 78

Campbell & Co. versus Hester’s Executor.

An executor will not be allowed to add a plea of the act of 1715, if he neglects to put it in at first.

APPEAL from the County Court of Granville, upon the question, whether the defendant, under the circumstances of the case, should be permitted to add the plea of the act of 1715, concerning proving wills, &c. section 9th. The motion was founded on an affidavit filed at the May term, 1800, of the County Court, stating in substance, that the defendant at the return term, about fifteen months before, had employed an attorney, who, he expected, would avail himself of any legal defence there might be to the action :- that the pleas had been entered, without the intention of waving the benefit of any act of limitation that might apply to the case ; but that the plea of the act referred to, had been omitted, by reason of a belief prevailing in the prosession, that it was not in force. Upon this affidavit, the County Court made an order that the plea should be added ; from which the plaintiff appealed.

Haywood for the defendant argued,

that the defendant, being an executor, defending the estate from an old demand, was entitled to any indulgence the law could shew ; especially as the time limited for the distribution of the estate had expired before the present suit was brought. That courts had frequently permitted the addition of a plea, where it furnished a substantial defence, and had no tendency to delay the plaintiff. That the act of limitation, having for its object the quiet of men’s estates, and the prevention of litigation, was a wise and politic law, and notwithstanding the prejudice sometimes entertained against it, had been denominated by able Judges, a just and beneficial statute. That in 1 Wils. 177, the defendant was allowed to add the plea of the statute of gaming : the object of which was to avoid the payment of a debt, to which he was bound by the ties of honour and conscience, though forbidden by a municipal regulation, on the ground of public policy. That the plea now offered would do justice in the case, and had been omitted only under the influence of a prevailing error.

Norwood for the plaintiff admitted,

that in some cases the courts had permitted a plea to be added, which amounted to a fair and honest defence, and which had been omitted, through surprize or inadvertence at taking the rules : but that such a plea, as was now offered, had been uniformly rejected, because its object, instead of a trial on the merits, was to bar the plaintiff, though his claim should be perfectly just—He cited Barnes 253, 332. 2 Wils. 253.

By

the Court.

It would be establishing a very bad precedent, to suffer this plea to be added, after so long a delay has taken place in the cause. But whatever inclination I might have to permit the addition on the grounds that have been stated, the case cited from 2 Wils, is too strong to be resisted : there the addition of the statute of limitations was denied, because it was not a plea to the merits. The plea now offered is exposed to that, as well as to this further objection, that the act of 1715, contains no exceptions as to infants, feme coverts, &c. differing in this respect from all other acts of limitations. As this act therefore would bar all persons, upon whose demands the time had run, whatever disabilities they might be under, arguments against the plea of the statute apply a fortiori to this case.

Motion denied.^*

* Vide Bos. and Puller’s Rep.