APRIL TERM, *1771.*

#### Isaac Perkins *against*Jonathan Turner and Ebenezer Reyner, Ex’ors of Thomas Perkins.

THIS was an action of account against the defendant, to account for the profits of certain lands and tenements, during the time their testator was the guardian and bailiff of the plaintiff. The declaration contained two counts ; the first, that the testator had the custody of certain lands and tenements of the plaintiff, from the 16th of August, 1753, until the 16th of *August,*1757, the said plaintiff during all that time, being within the age of fourteen years, and during all that time, the testator received the issues and profits of the said lands and tenements. The other count stated that the testator from the 17th of *August,*1757, was bailiff to the plaintiff of the said lands and tenements, and so continued from the said day, until the 3d of *February,*1762, and during all that time had and received the annual profits, &c. to render unto the plaintiff his rea» sonable account thereof, when he should be required,

*401The defendant pleaded as follows :

“ And the said *J.*and *E.*by *William*Paca, their At-*a*torney, come and defend the force and injury, &c. and “ say, that the said Isaac, his action of account against “ them, to have and maintain, ought not, because they say <£ that the said Thomas, in his life-time, never had the cus- “ tody of the lands and tenements in the declaration men-<e tioned, or received the profits thereof, or acted as guar- “ dian or bailiff for the said *Isaac,*or in any other manner £C took or received the profits of the lands, &c. and of this “ they put themselves upon the country.”

“ And the said *J.*and *E.*by the leave of the *il*Court, according to the form of the statute, &c. fur- “ ther defend the force and injury, &c. and say that the *a*said Isaac, his action of account aforesaid, against them, “ to have and maintain, ought not; because they say, that 6‘ the said *Isaac*was come to age on the first day of March, “ 1766, and after that, three years have elapsed before the “ impetration of the writ original in this cause 5 and this *u*they are ready to verify : Wherefore they pray judgment “ if the said *Isaac,*his action of account against them, to *a*have and maintain, ought,” &c.

The plaintiff joined issue to the first plea, and demurred generally to the second plea.

Hollyday, for plaintiff.

*Paca*and Hands, for defendants.

At an adjourned Court, held on the day preceding this term, motion was made to amend the plea, when *Hands*and *Paca,*in support of the motion, contended, that although this was a plea of limitations, yet. that the defendants were entitled to the same amendments as if it were s plea to the merits. That the statute of limitations ought, to be favoured 5 for *Holt*says, in the cace of *Green*v. *Rivet, 7 Mod.*12. that the statute of limitations is one of the best of statutes, and the pleading ih< reoí", no discouragement to any body. That pleadings originallv *ore tni””,*and *402then recorded, which was the reason why they could not then be amended; but when the old method of pleading *ore terms*was no longer used, and the allegations were reduced to writing, being then on paper only, and not entered on record, amendments were allowed: and cited 1 *Burr.*321. 2 *Burr.*1099. 1 Barnes, 13. c. 8. *2sStra. 734. And.*110. 381. *Salí. 520. And.*13. It is an established rule, that an amendment may be made at any time, befare the trial.

*Holly day ^*contra.

An amendment in this case is not a matter of right, and the Court will consider, whether in granting amendments, the opposite party must not be delayed or prejudiced. 2 *Burr.*755, 756.

The Courts here, are different from the Courts in *England;*there they have the power of continuing causes; but here, causes may, by act of Assembly, be continued to the end of the fourth Court after the appearance Court, and no longer, except in particular cases, when, at the discretion of tire Court, they may be continued longer. This is to be considered as a motion of the next *April*term, ^ though made at an adjourned Court, the Court in course sitting to-morrow; but if the Court incline to consider this as a motion of *September*term, 1770, they will take notice of the day when it was made;

In *Stra.*950. it was ruled that the election in amending, to pay costs or give an imparlafice, was in the defendant. 2 Barnes, 13. 18. explains this rule, that the election is in him against whom the amendment is made. If an amendment be now granted in this case, it would be impossible for the plaintiff to prepare for the trial in time.

2d Point. This being a plea of limitations, it is to give the defendant a legal advantage. The plaintiff demurs- to the plea, and thereby obtains a legal advantage also, and it would be unjust to strip the plaintiff of his legal advantage, merely to give a legal advantage to the defendant. As to *403amendments allowed, to avoid being barred by the statute of limitations, see 3 *Lev.*347. *Fitzg.*193. 2 Barnes, 4, *5.*181. 1 *Wils.*149. 2 *Wils.253.*

The demurrer came on this term to be argued, when,

*Holly day,*for the plaintiff,

contended that the plea was bad in substance, for the plaintiff could not join issue on it, or if he did, and a verdict was found in his favour, he could not be benefited' by it. As there are several counts in the declaration, and the plea goes to the whole of them, and if it be good only for one count, it cannot be supported; for a plea bad in part is bad for the whole.

A plea of the act of limitations, must be express to bring the party within the benefit of it, and it is not to be taken argumentatively. 6 *Mod.\*240. Salk. 423. 11 *Mod.*38. The plea here, does not say when the cause of action accrued, but states only, that the plaintiff was of age at a particular time, and that he did not bring his action within three years after his coming of age. Suppose the plaintiff had joined issue, that he was not of age at the time pleaded; yet it would not follow, but that he might have come of age at some time within three years before the bringing of the suit. It is like the plea of payment before the day, and wherever a plea is drawn in such a manner, that the issue if joined as to one part of the plea, is inconclusive and immaterial as to the other, it is bad. *Cro. Jac.*434. 10 *Mod.*147. 8 *Mod.*345. 1 *Strcu*317. *Cro. Eliz.*888.

He supposes it may be said, that issue might have been joined on the latter part of the plea, that the suit was not brought within three years after his coming of age, but that would have been an admission of the other part of the plea, which he was not obliged to admit, for the defendant does not admit that the plaintiff came of age at the time alleged.

It may be said, that it appears by the first count, that the Cause of action arose during the plaintiff’s infancy, but this *404will not avail, for the plea should be precise, and is not to be supported by inferences drawn from the declaration.

The plaintiff has a right by his replication, to bring himself within the exceptions mentioned in the act of Assembly ; this he may do when the plea is express, but he may be deprived of that right by this method of pleading; and if it is alleged that they shew the impediment of infancy was l'emoved, yet there are many others of which the plaintiff might take advantage. These exceptions ought to be shewed by the *plaintiff;*but if the defendant will meddle with them, he must shew that the plaintiff is not within any of the other exceptions besides that of infancy. It being a rule that the plea must be precise, it cannot be aided by any facts stated in the declaration. The act of limitations must always be pleaded, for although it should appear in the declaration, that the action was not brought within three years after the debt accrued, yet the defendant cannot demur to it. 2 *Rayni.*838. 2 *Salk.*422. 2 *Stra.*837. 936.

This plea is pleaded as a bar to the whole action, and though an inference should be drawn, that the plaintiff did not bring his action within three years from the matter alleged in the first count, yet there being two other counts from which no such inference can be drawn, the x'ule that a plea bad in pai't is bad for the whole, will then apply, See 1 *Saund.*28..2 *Saund.*113. 127. 1 *Stra.*509. *Philips M. Byron, Garth.*57. *Jordan*v. Powell, 196. 1 *Lev.*48-

*Paca,*for defendant.

Though the plea is informally pleaded, yet it is good in substance, and therefore the informality cannot be taken advantage of, on a general demurrer. The plaintiff’s declaration state.s him to be an infant. In his second count, he takes up the time from what was alleged in the first count. So in the third count; therefore if he was an infant at the time alleged in the first count, it follows of coux-se that he was so at the time alleged in the other counts. If the de*405fendant had pleaded, that three years had elapsed before the action accrued, it would have been bad, for the mere accruing of the action is no bar. „

The plaintiff by setting forth the infancy in his declaration, has alleged what he might have stated in his replication, therefore the defendant had a right to reply against his averment. There is nothing in this plea, which prevented the plaintiff from taking advantage in his replication of any of the other exceptions, which take him out of the statute of limitations. If the defendant had pleaded any other matter, it would have been an admission of the infancy. He has in his plea, shewn when the disability was removed, and alleged that three years had elapsed after that time, and before the commencement of the suit. In other declarations the disability is not mentioned, therefore the common method of pleading would not answer in this case.

In the first count, the plaintiff charges the defendant as guardian at Common Law, and which could not be but whilst he was an infant, under the age of 14 years. The second count he charges as bailiff, which could not be until he was an infant' after the age of 14 years. Tho third count also charges as bailiff, so that it was material for him in these counts, to allege the age of the infant. The plaintiff might have joined issue on the latter part of the plea.

Argumentative pleas are not to be taken advantage of, on general demurrer. 4 Bac. 134. 1 *LilL Reg.*437. The cases cited from *Modern*Reporta, and Salkeld, were before • the act for the amendment of the law, and therefore, even admitting they were general demurrers, (which does not appear,) as the rule of pleading has been since altered, they will not apply. The case in 8 *Mod.*345. was a special demurrer under the statute of 4 and 5 *Ann.*c. 16. which is similar to our act of Assembly, (1763, c. 23. s. 2.) in some instances; but our act of Assembly goes further, for the statute permits the parties to take advantage of informalities in pleading, by a special demurrer, *406but our act of Assembly does not give this indulgence, or allow of special demurrers. To shew the objection that a plea entire, ill in part, is ill in the whole, is a senseless one. *Vaug.*104. 4 *Bee.*13. A declaration may be ill in part and good in part; then why may not a plea be so ? Answer. For this manifest and obvious reason, because a plea is entire, but a declaration may contain distinct counts, which are several declarations. There is no reason why' the defendant should aver in his plea, what is materially' alleged in the declaration. The plaintiff could not have joined issue on the age, because it is alleged in the declaration, and is. confessed in the plea. And the defendant was obliged to answer the infancy, it being a rule that what is materially alléged by the plaintiff, must be traversed by the defendant, otherwise it is admitted. 1 *Stra.*297V 298.

*Holly day,*in reply.

It was necessary to shew in the declaration, the infant’s age, in order to support this particular action, and not for the purpose of taking it out of the act of limitations. They might have shewn a taking of the profits at any time, different from that alleged in the declaration, provided it was whilst the infant was under age, so that the time alleged does not ascertain the age. The defendant cannot take advantage of any disability appearing on the declaration. He must plead it. There is no reason, then, that the plaintiff should be bound by it. Though the books do not mention whether the cases cited, were on general or special demurrers, yet where a demurrer is spoken of, without any expression to distinguish it, a general demurrer is meant. In 11 *Mod.*38. the verdict did not cure the defect in pleading, which it would have done since the statute of jeofails, had it not been matter of substance; and it is remarkable that the case in 11 *Mod.*was long after the passing of th© act for the amendment of the law, therefore it must be in-' tended a general demurrer. 10 *Mod,*147s

*407There is no difference as to time, between a local and a transitory action, though there is as to *place.*An action of trespass is local, but the plaintiff need not' conform to the time alleged in the declaration.

*Per totam Curiam.*

Judgment on the demurrer for the plaintiff.