#### Walker vs. Bank of Mississippi.

On writings obligatory falling due 27th Feb. 1839, five years was the period of limita tion under Rev. St. chap. 91. If the plaintiff desires to avail himself of an exception in the statute, he must do so by replication : as the court will not take notice of any averment in the declaration as to such exception.

Appeal from the Circuit Court of Chicot County.

Debt, determined in the Chicot circuit court, at the May term 1846, before Sutton, judge. The facts are stated, sufficiently, in the opinion of this court.

*504Pike &' Baldwin, for appellant;

The only question to be decided here is whether an action on a bond is banned in 5 years. Sec. 11, page 528, Rev. St. is conclusive. That statute is in force as was determined in Hawkins vs. Campbell, so far as this action is concerned. The case falls entirely within the rule of Hawkins vs.■ Campbell, 1 Eng. R. 513.

Meany, contra.

By the record in the cause the Bank of Mississippi is shown to be a non-resident of Arkansas, and the 3d section of the act of 1844 concerning limitations would require a plea negativing her having brought the action' within said two years. This section being in pari materia and in force when suit brought,- said 3d section comprehends all claim's existing before its passage and was enacted in lieu of the act in the Revised Statutes.

The contract was made before the promulgation of the' Revised Statutes and the law then in force’gave twenty years, the suit being founded on a bond.

Conway B, J.

On the 17th March 1846 the Bank sued Walker in the court below on a writing obligatory due 27th Feb’ry 1839.' Walker plead that plaintiff’s cause of action did not accrue within five years next before the commencement of her suit. The Bank demurred to the' plea. The demurrer was sustained and Walker' saying nothing further the court gave judgment against him, and he appealed.

The circuit Court ought to have overruled the demurrer to the plea. .For five years was then the limitation on such causes of action, and it appears more than that period had elapsed from the' accrual of plain tiff’s cause of action, as well as from the taking effect of the statute of limitations in the Revised Code before' the institution of her suit. If the Bank wished to avail herself of any exceptions specified in the act, it was necessary for her to reply the exception. For though it is stated in the declaration that the Bank is out of the limits of the State the court could not properly take cognizance of the fact thus presented. The judgment is therefore reversed and the case remanded with instructions to the circuit court to grant the parties leave to amend their pleadings if they desire to do so.