The writ of error is brought either to reverse the original judgment, or the order on the rule to show cause why the judgment should not be opened, and the defendants let in to plead the act of limitation.

Is there error in this order ? The affidavit below was made by the four sureties; it was their application, and on the hearing the plaintiff agreed not to execute the judgment as against them, and the rule was discharged as to them of course. This agreement was not a release; there is a clear distinction between an agreement not to execute, and a release of a judgment. But there is another question, whether a writ of error lies on the decision of such a side bar motion, and of which we have doubts.

But as to the question, whether the original judgment was •erroneous, it is a principle that the act of limitation is a defence which must be pleaded. (Ball, on Lim. 170 to 313; 2 Saund. Rep. 63, a. note 6.) Whether the court would open the judgment to let in this defence, is a question for the court below, and not for us. Generally speaking, the court prescribes as one of its terms of opening a judgment, that the statute of limitation shall not be pleaded. But we don’t decide any thing on this subject. The act limiting this action on collector’s bond to three years, was passed January 30, 1820; and the act prescribing the condition of the collector’s bond and authorizing a warrant of attorney to confess judgment to form a part of it, was passed February 6, 1829. It may be a question, whether this did not in effect repeal the limitation. But we make no decision on this point, as the matter could not come up except by application to the court below, which may yet be made.

Judgment of affirmance.