#### Fogarty v. Horrigan.

*'Amendment of*complaint, *to set üp statute of limitations.*

1. On the first day to which, a cause in justice’s court was adjourned after issue joined, an amendment to the answer was allowed, and, after a second adjournment for trial, a further amendment, setting up the *statute of*limitations, was refused. *Held,*no abuse of discretion.

2. On such an application, the court may properly consider the character ‘ of the defense proposed to he set up; and a defense founded upon the statute of limitations is not favored.

APPEAL from tbe Circuit Court for *Washington*County.

Action commenced in justice’s court, for a trespass to plaintiff’s close. Defendant first answered by a general denial, and procured an adjournment for one week On tbe adjourned day, be amended bis answer by setting up an express license from plaintiff to do tbe acts complained of, and also alleging that be and plaintiff were tenante in common of said close at tbe time laid. On defendant’s application and affidavit, a further adj oumment for eight days was granted. On the second adj ourned day, defendant applied for leave to further amend bis answer by setting up tbe statute of limitations. Tbe motion was denied, on tbe ground that tbe defense proposed was an unconscionable one. After bearing tbe proofs, tbe justice rendered judgment for plaintiff for $10.00 damages, besides costs. On appeal to tbe circuit court, tbe justice’s judgment was affirmed; and tbe defendant appealed to this court.

*H. H. Blanchard*and *1. N. Frisby,*for appellant,

as to tbe right of amendment so as to secure substantial justice, cited B. S., cb. 120, sec. 46, subd. 11; and to tbe point that it was error to refuse tbe proposed amendment on tbe ground that tbe defense therein set up was an unconscionable one, they cited *Pritchard v. Howell,*1 Wis., 136-38: *Union Nat. Ble. v. Bassett,*3 Abb. Pr. B. (N. S.), 359; *Beardsley v. Stover,*7How. Pr. B., 294; *Troy\andB. B. B. Co. v. Tibbits,*11 id., 170; *Union Ble. v. Mott,*19 id., 267; *Van Ness v. Bush,*22 id., 481; *Harrington v. Slade,*22 Barb.,. *143101; Jw: *Y. Ice Go. v. N. W. Ins. Co.,*23 N. Y., 357; also 18 Abb. P. E., 407; 8 Cow., 615; 41 Barb., 54, 57 ; 40 id., 659.

*Frisby & Weil,*for respondent,

cited *Haleagan v. Golden,*1 "Wend., 302 ; *Jackson v. Varich,*2 id., 294; *Wolcott v. McFarlan,*6 Hill, 227 ; *Lovett v. Gowman,i<L,*223; *Bates v. Voorhies,*7 How. Pr. E., 234; *McQueen v. Babcock,*22 id., 229 ; *Jones v. Walker,*22 Wis., 220.

Cole, J.

We fully agree witb tbe circuit judge in tbe opinion tbat there was no abuse of discretion on tbe part of tbe justice in refusing to allow tbe defendant further to amend bis answer by pleading tbe statute of limitations. Tbe defendant was permitted to amend bis answer on tbe adjourned day. On tbe second adjourned day, when tbe parties were about to proceed to trial, tbe defendant again asked to amend so as to set up tbat defense. After tbe issues bad thus been made up, it certainly was no abuse of discretion to refuse to let tbe defendant further amend bis answer to enable him to set up what is sometimes denominated a bard and unconscionable defense. It is claimed tbat all defenses stand upon tbe same ground, and tbat no distinction should be made between tbe statute of limitations, usury, and other defenses. But there obviously must be some limit to tbe power of amendment; and where tbe application was addressed, as in this case, to tbe discretion of tbe justice, if tbat discretion has not been improperly exercised, tbe decision should not be disturbed. Besides, this court has been disposed to uphold a distinction between such defenses as usury and tbe statute of limitations and other defenses, and has said tbat where a party asks an indulgence of tbe court, and there is no statute controlling its action, it might make discrim-inations dependent on the nature of tbe defense. *Jones v. Walker,*22 Wis., 220; *Dole v. Northrop,*19 id., 249; and *Weber v. Zeimet,*27 id., 685.

Here tbe defendant bad ample opportunity for setting up bis defense, and was even permitted to amend bis answer on tbe *144adjourned day. And we think, under tbe circumstances, tbe justice very properly denied btm leave to further amend on tbe second adjourned day, to set up tbe proposed defense.

*By the*Court.— Tbe judgment of the circuit court is affirmed.