Sawyer v. Patterson , 12 Ala. 295 ( 1847 )

ORMOND, J.

It is very certain, and indeed is not denied, that the court had power to impose terms upon the defendant, as the condition upon which he should be relieved from the effect of his default, the judgment against him be set aside, and he be permitted to plead to the action. The condition having been accepted, the only question is, whether it applied only to the declaration then on file, and whether he was exonerated from a compliance with its terms, upon the declaration being amended.

From the nature of the condition imposed on the defendant, and accepted by him, it appears that it applied to the action, and not to the declaration. The plea of the statute of limitations, which the defendant agreed not to plead, would go to the entire action, and not to the form of the declaration. It is impossible therefore to suppose, that the condition was imposed in reference to the declaration then on file ; it was manifestly in reference to the debt sought to be enforced, as to which the defendant agreed, in effect, that it was not barred by the statute of limitations when the action was commenced. This agreement, from its verynature, must continue in force until the action, in reference to which it was made, is determined. The court therefore did not err in striking out the plea.

Judgment affirmed.