McQueen v. Babcock , 3 Abb. Ct. App. 129 ( 1867 )

By the Court.

Grover, J.

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The general term correctly held that the defendant had the right to serve an amended answer twenty days after service of the original, and to include therein a new defense. Code of Pro. § 172; Thompson v. Minford, 11 How. 273; Wyman v. Remond, 18 Id. 272. This is now the settled practice of the supreme court. The idea that the defense of usury or of the statute of limitations, was to be treated in this respect different from other defenses, has been exploded. Courts now regard all legal defenses as entitled in this respect to the same consideration. The question in this case was not addressed to the favor or discretion of the court. The defendant had a legal right to serve the amended answer.

The only question upon the merits is whether the time during which the injunction was in force, should be excluded from the meaning of the statute of limitations. It is provided by statute that the time during which a party shall be prevented by injunction from commencing an action, shall not be computed. Code of Pro. § 105. The inquiry is whether the injunction in the present case restrained the plaintiff from commencing a suit for the tortious taking of the property in his possession, subsequent to its issue. A perusal of the injunction satisfies us that it had no such effect. It left the defendant at full liberty to take care of and protect the property in his possession from all tortfeasors. For this purpose he was at liberty to prosecute suits against such. The time therefore cannot be deducted, and the statute constituted a defense. The judgment should be affimed.

All the judges concurred.

Judgment affirmed, with costs.