274 LINGAN v. HENDERSON.

not take cognizance, because of its being improper to break in
upon the regular course of legal proceedings more than is neces-
sary for the purposes of justice, it will prevent a party from taking
an unequitable advantage of the statute of limitations, or any lapse
of time at law.(&)

Defences resting upon the statute of limitations at law, or upon
the same lapse of time in analogous cases in equity, seem to have
been treated with a rather unsteady hand. They have been some-
times regarded as deserving much favour, while at other times they
have been scowled upon as subterfuges, resorted to for the purpose
of escaping from the real merits and justice of the case; and
particularly so, where, as in this instance, such a defence has been
relied on by only one of a plurality of defendants as a total bar to
the whole cause of suit. But there cannot be, in reality, any such
pliability in the general rules of law as will allow of their being
bent and twisted in one way or other at the pleasure of any court
of justice by whom they may be administered.

Here, however, it is insisted by this plea, that neither this
defendant Richard Henderson, nor John Henderson deceased, did
at any time within three years, before the exhibition of this bill of
complaint, promise or agree to pay, or satisfy the plaintiffs or James
M. Lingan, any sum of money on account of the transaction in the
bill of complaint mentioned. From which it would seem, that,
although it is insisted, the whole cause of suit has been barred
by the statute of limitations, yet, as this defendant Richard
Henderson has denied, that he himself made any promise, his plea
does thereby tacitly concede, that an acknowledgment of this cause
of suit, made by himself or any other of his co-defendants, would
take the case out of the statute; upon the ground, that if such a
plea from any one defendant would be a bar to the whole, then an
acknowledgment by any one would revive the whole. And if so,
then, apart from the defences of English and wife, as there is here
a default and tacit admission of the whole by two others of these
defendants, this plea of the defendant Richard Henderson can be
of no avail to himself, or to any of his co-defendants. (1)

If this position be tenable, then it is evident, that as in all cases,
where the statute of limitations is not expressly relied on, it is
considered as waived, it can in no case be received as a valid
defence, where there is a plurality of defendants; unless each one,

(fe) Bond v. Hopkins, 1 Sch. & Lefr. 430.—(1) Johnson v. Beardslee, 15 John. Rep. 3.