Saunders v. Cresswell Roll Forming Co.

Carey, J.:

In opposing the present motion, the plaintiff contends that a plea of the statute of limitations, being an affirmative defense, is waived when not relied on in the original answer. Burton v. Waples, 3 Harr. 75, is cited. In that case, the Court held that the plea is to the remedy and not to the substance of the action; that it deals with the legal merits as contrasted with the real merits. It was indicated that the Court had no power to permit the change because of the wording of the constitutional provision authorizing the Court to allow amendments in civil actions when necessary…