Moore, C. J.
The judgment in this case cannot be sustained, upon the ground, that the account upon which the suit is brought is not referred to or embraced within the terms of the letters upon which the plaintiff relies as an acknowledgment of the justice of his claim, and that the alleged cause of action therefore appears, from the *178face of the petition, barred by the statute of limitation. For although limitation is pleaded in bar to the suit, it is not set up by way of exception or demurrer. It is expressly provided by statute, that “limitation shall not be made available in any suit, unless it is specially set forth in the answer as a defense.” (Sec. 5, act of 16th February, 1852.) It must unquestionably, however, be presented in a manner pertinent to the issue to be decided. And since, in determining the issues of law, the court does not look to the pleas in bar, it cannot be considered, in passing upon the demurrer, as set forth as a defense in the matter upon which alone the court is acting. A hasty perusal of the case of Leavitt v. Gooch, 12 Tex., 95" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/leavitt-v-gooch-4888009?utm_source=webapp" opinion_id="4888009">12 Tex., 95, might leave the impression that a different rule had been recognized by this court. But it will be seen, from an examination of the record in that case, that a jury was waived and the ease submitted to the court; and it was for this reason the judgment was sustained, there being at most a mere irregularity in the form of the judgment. But if this were not so, as this case was decided in the district court before the passage of the law to which we have referred, it cannot be regarded as an authority upon the point. If, therefore, the judgment of the court below in this case was given upon the supposition that the cause of action appeared from the petition to be barred by the statute of limitations, it must be pronounced erroneous. Ahd as this is the only ground presented to us in support of the judgment, we do not feel called upon to do more than express our opinion upon it. To obviate any misconstruction, however, we will add, that we are of opinion, that the fourth special exception to the amended petition should have been sustained; but this did not authorize the general judgment against the plaintiff, for this amendment is certainly not vital, if in fact at all material, to the plaintiff’s case. If, as is probable, it were intended by the amendment to refer to the defendant’s letters, which are set out in the original petition, and to *179charge an acknowledgment in writing by them of the justice of the plaintiff’s claim, it is certainly unnecessary, for that had already been sufficiently done in the original petition.
"Whether the letters relied upon refer to the account on which the suit is brought, is a question of fact for the determination of the jury, when all the evidence bearing upon the point shall be properly presented to them, upon which it would be improper for us now to express an opinion. If the letters refer to the account upon which the suit is founded, they are evidently a sufficient acknowledgment in writing of the justice of the plaintiff’s claim to relieve him from the bar of the statute. This is as far as in the present attitude of the case we need inquire.
The judgment is reversed, and the cause
Remanded.