#### Wayland et al. ad. vs. Coulter et al. Bettison vs. Byrd.

The principle decided in Brown, Robb Sf Co. vs. Byrd, 5 Eng., as to the plea of limitations in a scire facias to revive a judgment, re-affirmed.

As such plea is no defence to a scire facias to revive a judgment, it may he as well met by motion to strike out as by demurrer.

Writ of Error to Pulaski Circuit Court.

These were writs of scire facias to revive judgments : the defendants pleaded actio non within five years : the plaintiffs filed motions to strike out the pleas, but the court overruled the motions ; and the plaintiffs declining to reply further, final judgments were rendered in favor of the defendants, and the plaintiffs sued out writs of error.

Fowler, for the plaintiffs.

Watkins & Curran, contra.

Mr. Justice Scott

delivered the opinion of the Court.

One of the questions presented in this case was settled at the last term in the case of Brown, Robb & Co. vs. Byrd, 5 Eng., and as a consequence of the doctrine of that case the remaining question in this case is, we think, easily solved.

The plea interposed was very different from one that might set up one year as a bar to an action barred by the lapse of five, because in such a case, inasmuch as lapse of time properly presented would have been a bar, that plea, although defective, would have been of a nature appropriate to present a defence to the action and would therefore be properly met by a demurrer. But inasmuch as our statute of limitations does not apply to proceedings like those in the case at bar, as was settled in the case we have cited, the plea setting up that bar was totally inappropriate; and therefore might have been as well met by motion to strike out as by demurrer.

We think therefore that the court erred in refusing to grant the motion to strike out and for this error the judgment must be reversed and the cause remanded.