| Miss. | Jan 15, 1852
delivered the opinion of the court.
The plaintiffs in error were sued as administrators, upon a promissory note, made by Absalom Leggett, their intestate. At the return term, judgment by default was entered against them ; but which, at the same time, upon motion and affidavit, was set aside, and leave granted to plead to the merits of the action. The defendants then filed the general issue. At the following term, the cause coming on to be tried, the defendants relied upon the statute of limitations in relation to actions on promissory notes, and also upon the statute in regard
It is well settled that an executor or administrator may avail himself, under the general issue, of a defence predicated.upon the statute of limitations. And in this case there was no objection to the relevancy and competency of the evidence offered to establish the statute bar. But it is contended that the defendants, by suffering a judgment to go against them by default, waived their right to insist upon the defence of the statute. And having been allowed to plead upon terms, they were restricted to a defence to the merits of the action.
An express promise by an executor or administrator, to pay a debt barred by the statute, will not have the effect to revive it against the estate of his testator or intestate. Henderson v. Ilsley, 11 S. & M. 9. The judgment by default, entered against the parties in this case, and which was set aside upon their motion, cannot be regarded as stronger evidence of a waiver of the statute than an express promise to pay the debt. Hence, if it were conceded that an administrator has a right at his discretion, to plead or not to plead the statute, the court erred in rejecting the evidence.
The judgment by default was rendered and set aside at the return term of the writ. The plaintiff therefore was not delayed in the prosecution of his suit. He had been put to no inconvenience, nor had he suffered any injury; but conceding that, under the circumstances, the court had the right, upon setting aside the judgment, to require the defendants to plead to the merits of the cause, the condition was complied with. The defence set up was a bar to the action, and is now uniformly regarded as meritorious. 11 S. & M. 20; Ib. 152; 1 Peters, R. 369 ; 5 Ib. 407.
Let the judgment be reversed, and cause remanded.