#### Walker & Rose vs. Bank of Mississippi.

A plea that the defendant “did not undertake &c., within three years,” &c. is q good bar, unless avoided by replication, to assumpsit on a promissory note due on the 10th February, 1839. (See Couch vs. McKee, 1 Eng, 484. Hawkins vs. Campbell, lb. 513.

*501 Appeal from the Circuit Court of Chicot County.

Assumpsit, determined in the Chicot circuit court, at the May teim 1S46, before the Hon. Wm. H. Sutton, judge. The facts are .stated, sufficiently, in the opinion of this court.

Pike & Baldwin, for appellants.

E. A. Meany, contra.

Conway B, J.

The Bank instituted suit against Walker and Rose, the 26th of No v’r 1845, on a promissory note due 10th Feb’y 1839. The defendants plead that they did not undertake as alleged within three years next before the commencement of the suit. The Bank demurred to the plea. The court sustained the demurrer and the defendants declining farther defence, judgment w'as rendered against them, and they have brought up the case by appeal.

The only question is as to the validity of the plea. At the institution of the suit upwards of six years had elapsed from the time plaintiff’s cause of action accrued and near the same period from the taking effect of the statute of limitations in the Revised Code. This suit was on a liability not under seal, and at its commencement the limitation prescribed for suits on such causes of action was three years. The plea of defendants was therefore valid, and, unless avoided by replication, a complete bar to plaintiff’s cause of action. The circuit court erred in sustaining the demurrer. The judgment is therefore reversed .and the case remanded with instructions to permit the parties to amend their pleadings if they ask ¡leave to do so.