Wiley v. Heaps

Schmucker, J., delivered the opinion of the Court. The declaration in this case contained only the common counts in assumpsit and was accompanied by no account or other voucher showing the particulars of the plaintiff’s claim. To this declaration the appellee, who was defendant in the Court below, filed, along with other pleas, one of limitations, which was in the following form: “ That the alleged cause of action did not accrue within three years before the institution of this suit.” The appellant demurred to the plea of limitations and replied to the other pleas. The Court overruled the demurrer and asked the appellant if he wished to reply to the plea of limitations and the appellant answering that he did notj judgment was entered against him for want of a replication to the plea of limitations.

The appellant contends that the plea does not answer the entire declaration, which contains several counts, and that it is too indefinite and uncertain to apply to any particular count. It is an admitted principle of pleading that when a plea is intended for part only of a declaration it must show ⁴⁵ to what part it applies, and that when it is intended to go to the entire action it must answer the whole declaration. As the plea in the present case contains nothing to indicate that it was intended for only part of the action, the question to be determined is whether it responds to the entire declaration. The plea of limitations is not a meritorious one and the Courts act with care and strictness in its reception, requiring it to be filed within the rule-day and not permitting it to be amended, but, when it has been filed in due time it is construed upon the same principles as other pleas are with reference to its sufficiency and if it be sufficient in substance it will not be rejected for mere matter of form.

The supposed defect in the plea now under consideration is that it describes the ground of the action as “the alleged cause of action ” when it is contended that, as there are several counts in the declaration, it should have alleged that the supposed “ causes of action did not nor did any of them accrue,” &c., &c. We do not regard this objection as a substantial one. In the forms of pleas to actions on simple contract found in Sec. 23 of Article 75 of the Code, the plea of limitations appears in almost the identical words used in the plea in the case at bar, and in the other forms of pleas there found the ground of the action is described as “the plaintiff’s claim,” “the alleged claim,” “the alleged claims” and “the cause of action.” These different expressions are used synonymously in the Code and the word descriptive of the plaintiff’s cause of action appears, with one exception, in the singular number. In the case of Bullen's Admr. v. Ridgely,1 H. & J. 104, there were, as in the present case, a number of counts in the declaration, some of which set up the promise and assumpsit of the testator and