The State, for the use of Gideon Burton, v. Henry F. Rodney and Henry F. Hall

The State, for the use of Gideon Burton, v. Henry F. Rodney and Henry F. Hall. After a general leave granted to amend the pleadings without qualification, the Court will not, on motion, strike out a plea of the statute of limitations entered under the leave. But if objected to at the time of the application to amend, after issue joined, the Court will not permit it to he entered. In an action on an executor’s bond, the party for whose use the suit was brought for a legacy, recovering judgment, was ordered to enter into bond to the executor to refund, to meet outstanding debts, &c., and execution stayed till the order should be complied with. This was an action of debt, against Henry F. Rodney and Henry F. Hall, on the testamentary bond of the former, as the executor of Robert Burton, deceased, for one-fourth of the residue of his personal estate, bequeathed to Gideon Burton. Charles M. Cullen, for the defendants, moved to strike out the replication of the statute of limitations'to the plea of set-off, because it was entered by the plaintiff after the case was at issue on its merits, on leave granted by the Court to amend; for the Court will not permit the plea of the statute of limitations, or any other than a plea to the merits, to be entered after the case is at issue, under leave to amend. 2 Harr. 444; 3 Harr. 75. [MAJORITY — By the Court:] By the Court: In the cases cited the counsel was required by the Court, at the time of making his application for leave to amend, to state the nature of the plea he desired to enter, and it appearing to be a plea not to the merits, but of the statute of limitations, the leave was refused. But in this case no such question was made at the time of the application, and a general leave was granted without qualification to amend, which authorized the plaintiff to reply de nova, if he saw proper, and it was therefore now too late to object to the replication, or to move to strike it from the record. On the trial the plaintiff recovered a verdict for $386.78, for which the Court gave judgment. ' But as it was alleged and made to appear on the part of the executor that the estate was not yet settled, and that there were outstanding debts against it still unpaid, the Court made an order, requiring the party for whose benefit the suit was prosecuted, to enter into bond with security to the executor to refund,' &c;, pursuant to the provisions of the statute. Rev. Code, 305, sec. 37; Fitchett v. Dolbee, 3 Harr. 368. The Court also directed stay of execution on the Judgment to be entered, until the order should be complied with. C. S. Layton, for plaintiff. C. M. and E. D. Cullen, for defendants.