RETZER

v.

WOOD, COLLECTOR

IVTr Justice Blatchford delivered the opinion of the court.

After reciting the facts as stated above, he said:

We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do, an “ express business,” within the meaning of ¿the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call'- and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words “ express business,” in the statute, must have the meaning given them in the common acceptation. An “express business ” involves the idea of regularity, as to route or time, or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an “ express ” or was doing an “ express business,” or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown.

As to the defence of the statute of limitations, it was not pleaded, nor brought to the attention of the court, as a defence at the trial. It was not within the issue raised by the plea of. the general issue, which was the only issue to which the stipule tion for a trial by the court extended. It is well settled, that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitations as a defence, must raise the question either in pleading, or on the trial, or before judgment. Storm v. United States, 94 U. S. 76, 81; Upton v. McLaughlin, 105 U. S.

640. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. "When the testimony at the trial closed, and the plaintiff asked for a judgment' in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax ivas illegally exacted, being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was Whether they required a judgment' for the plaintiff or the defendant. ' This was a matter of laW, the ruling on Avhich can be reviewed by this court. Norris v. Jackson, 9 Wall. 125.

The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the statute of limitations may be pleaded. Without passing on the question as to whether the statute invoked would furnish a défence in this case, we are of opinion that no ground exists for the course suggested. The record-shows that the defendant’s attorney had notice, by the declaration, that the plaintiff’s claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances it would not be -a fair exercise of discretion not to hold the defendant to his legal status.

The judgment is reversed and the case is remanded to the circuit cowrt, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the lana of the State,of New York.