206 Pa. 307 | Pa. | 1903
Opinion by
The procedure act of May 25, 1887, P. L. 271, introduced clumsy and unscientific methods into the legal statements of the parties, by the plaintiff of his cause of action and by defendant of his defense, but it did not go so far as to overturn and confuse the fundamental principles of pleading by requiring the plaintiff to set out his evidence or anticipate the defense.
The statute of limitations is a defense upon facts, and must be pleaded. It cannot be made by a demurrer which raises only an issue of law. It is not a defense absolute of which the court will take judicial notice on the plaintiff’s presentation of his case, either in his declaration or at the trial, for if the defendant does not choose to make it, it is not a part of the ease at all. And the only way the defendant can make it is by plea. A single illustration will suffice. At the trial the plaintiff might prove the signature of defendant, put the note in evidence and rest with a completed case. If defendant gave no evidence, the verdict must be for plaintiff without regard
Both on the general principles of pleading, therefore, and on the express provisions of the procedure act, the court below was in error in sustaining the defense of the statute of limitations on a demurrer.
It was even more pronounced error to sustain the demurrer to the amended statement. That statement having been allowed and filed was the only one before the court, and it set up a good cause of action even under the erroneous view of the court in requiring it. The inconsistency with the first
Judgment reversed and demurrer directed to be overruled, with leave to defendant to plead issuably.