Union Bank v. Eliason

24 F. Cas. 549, 2 D.C. 629, 2 Cranch 629

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1825
• Status: Published

Opinion

The Court

(Thruston, J., doubting but not dissenting,)

said, It is within the discretion of the Court to admit or refuse any plea offered after the expiration of the rule to plead. The plaintiff has then, strictly, a right to judgment by default. This right is controlled only by the practice of the Court. By that practice, long established, all fair pleas to the merits have been admitted after the rule-day; but, by the same practice,' the plea of the statute of limitations cannot be admitted, unless facts be stated showing it to be necessary to support the justice of the case, such as the loss of evidence, or some just defence of which the defendant is unable to avail himself at law, and the like; or unless some other good cause be shown to the Court for admitting the same.

In the case of Wetzell v. Bussard, at October term, 1821, in this Court, [ante, 252,] although there was an affidavit of merits, yet the Court relied principally upon the ground that the attorney for the defendant had been instructed, before the plea-day, to plead the statute of limitations; but it being the first term of that attorney’s practice in this Court, and not being acquainted with the practice of this Court to require the plea of the statute of limitations to be filed before the expiration of the rule to plead, omitted to file it until the imparlance term after the plea-day.

In the present case, Mr.Coxe, the defendant’s attorney, had, at the time he was employed by the defendant, been recently admitted to practice in this Court, and was as ignorant of the peculiar practice of the Court in regard to the statute of limitations as the attorney was in the case of Wetzell v. Bussard; and the affidavit of merits is perhaps as strong in this case as in that. The defendant had a right to plead the statute. He was in no personal default in not pleading it in due time. He has stated in his affidavit that he was ignorant of the practice to require the plea to be filed before the plea-day. If he should lose his ease for want of the plea, it is doubtful, perhaps, whether, under the circumstances, he could make his attorney responsible for his loss.

We see no difference in principle between this case and that of Wetzell v. Bussard, and therefore think that the plea ought to be admitted.