#### Duncan McRae, and others, vs. Joshua David.

After a decree to account made in the Court of Appeals, the defendant, by leave of the Commissioner, amended his answer by pleading the statute of *limitations:*— -Meld, that the leave was improperly granted ; and the Commissioner’s order was set aside.

A decree to account precludes the defendant from making or insisting on any defence, as, for instance, the statute of limitations, which might have been made before.

BEFOSE DABGAN, OH., AT MABLBOEOUGH, FEBBUABY, 1855.

Amongst other matters of defence insisted on by the defendant in his answer, he submitted, whether he was “ not protected 'by the lapse of time since the bond was taken, from accounting with the complainantsand he prayed to be allowed the same benefit of that defence, as if preferred in a different form of pleading.

*376In January, 1864, after the decree in this case bad been pronounced by the Court of Appeals, (see 5 Rich. Eq. 475,) the complainants amended their bill by making the legal representatives of the sureties to the administration bond parties thereto ; and defendant, by leave of the commissioner, amended his answer by pleading more formally the statute of limitations.

His Honor made an order that the order of the commissioner granting leave to amend the answer, be set aside, and the amended answer taken off the file.

The defendant appealed.

*Dudley,*for appellant.

*Inglis, Tliornwell,*contra.

The opinion of the Court was delivered by <

DüNKIN, Oh.

The plea of the statute of limitations, if sustained, is a bar to the plaintiff’s action. Where it is incor--porated in-an answer to a bill for an account, a decree to account necessarily infers that this defence has been withdrawn, or not insisted upon, or that it has been considered and overruled. In this case it is not clear that this defence was presented by the pleadings. But, if so, the defendant was entitled to have availed himself of it in the argument at the former hearing in this Court. The judgment of the Appeal Court, declaring the liability of the defendant, determined any defence which was made, and precluded any which might have been made. This has been repeatedly ruled, and is necessary for the peace of the community, and that there may be an end of litigation.

But it was supposed that the order of the commissioner might be justified by the decision in *Burden*vs. *McElmoyle,*Bail. Eq. 378. In that case no hearing had taken place. The *377cause was set down for hearing on hill and answer, and had been continued until the next term. The presiding Chancellor, under these circumstances, permitted the defendant to amend by adding the pleas of the statute of limitations and an account stated. The Court of Appeals, with some hesitation, and after animadverting upon the irregularity of the practice as not to be encouraged, sustained the order, as an exercise of judicial discretion. But in this case the defendant had been already heard, both in the Circuit and Appeal tribunals, upon all the grounds which he deemed it necessary to urge upon the consideration of the Court, and his liability had been definitely established. After this it was neither competent for the Commissioner nor a Chancellor to grant the order, which was properly rescinded by the Circuit Court.

The appeal is dismissed.

Johnston, Dargan, and Wardlaw, CO., concurred.

*Appeal dismissed.*