
    Long v. Anderson.
    If the petition exhibit a cause of action which is barred by the statute of limitations, the defendant can avail himself of the detect on assignment of error, although he may not have done so by answer, demurrer, or motion in arrest of judgment. (Note 91.)
    The ease of Coles v. Kelsey and Swenson and others v. Walker's AdrnT cited and approved; and the ease of Petty v. Cleveland cited and overruled.
    Error from Houston. Suit instituted on the lltli of January, 1845, on a due hill dated and due ou the 4th of February, 1839. Judgment'by default.
    
      
      Thomas J. Jennings, for plaintiff in error.
    The note sued on was barred by the statute of limitations and by prescription, on tiie principle recognized in tiie cases of Gautier v. Franklin (1 Tex. R., 732) and Hays v. Cage, (2 Tex. R., 501.) The defendant can lake advantage of this defense on error. (Coles v. Kelsey, 2 Tex. It., 541; Swenson and others v. Walker's Adni’r, 3 Tex. It., 93.)
    $. A. Miller, for the defendant in error, suggested delay.
   LitscoMB, J.

Tiie suit in this case was commenced by the defendant in error, against the plaintiff in error, on the lltli of January, 13J3, on a note or due bill dated on tiie 4th of February, 1S39, payable immediately. Thorn v.as a judgment by default, there being no appearance or answer by tiie defendant in the, court below. The cause is brought before us on a writ of error, and tiie error assigned is tile giving judgment against tiie defendant, when (lie record shows the cause of action to 'have been barred before tiie commencement. of the suit.

This point lias never been directly decided by this court. We were, however, fully aware, in tiie decision of Coles v. Kelsey, (2 Tex. R., 541) and in ft wen-son ei al v. Walker’s Administrator, (3 Tex. R., 03.) that a case of this kind would be embraced in the principles of those decisions. AVe do not propose again discussing the doctrine we laid down in those cases, because we have the most unshaken contidenee in tiie correctness of the views then expressed as the opinion of a majority of the court, resulting from our system of litigating rights. AVe thou showed that tiie first decisions under the, statute of James I, chapter 10, section 3, were decided in conformity lo tiie views we have, taken: that when the record showed that the. suit was brought after the time, limited in the statute, tiie defendant could take advantage of it by motion to the court or by motion in arrest of judgment. AVo showed (hat when this rule of decision was changed, the reason assigned in support of such change was that perhaps tiie plaintiff might be able to prove one of (lie exceptions in the, statute, and that this ho could do under the general indebitatus count in an' English common-law declaration; that an}'matter that, could not be received in evidence under that count must lie specially alleged in (ho special count; that it must therefore be pleaded by tiie defendant; that, as we had no com.mon or indebitatus counts in our practice, everything necessary to a recovery must be specially alleged in the petition and proved.' AVe referred lo 1he proceedings on a bill in chancery, as iiracliced in (lie United States Courts, to show that there was the most striking analogy between the practice in (hose courts and our practice, by bill and 'answer, and (hat tiie precedents in that court would be better authority for us than common-law precedents.

It would, perhaps, at this time he exceedingly difficult to ascertain when the common indebitatus count was introduced; but there can be no doubt that it was an interpolation on the English declara!ion, craflily designed to mar the. beauty of the system and defeat, the object for which lite declaration was originally designed: lo be a full, olear, and explicit' exposition of (lie grounds of action. An English judge, commenting on the. variety of grounds of action that, might he proved under this count, and the uses to which it was subservient, remarks ‘‘that he was a bold man who invented it.” Bold, orafly, and unscrupulous lie must have been who by such an artifice could subvert a system (hat proudly boasted that underifs benign influence no one could be called on to answer to any charge against him without at the same time being fully apprised pf tiie nature anil character of such charge. Such abuses and artiiices can And no covert or hiding place in our system from which to pounce upon the, unwary and deluded defendant. And by repudiating the artiiices of that protean count from our system, (lie huge mass of decision's made, under its potent influence have been swept from our courts to slumber with ages that are gone. Let who may mourn tlieir loss, I for one, must say that my sympathies mingle in uo such regrets. Under our system, by petition, tiie plaintiff is required to make a frank, plain exposition of the grounds on which lie reeks a judgment against kite defendant; and if the application of i'lie law of the land to the facts so stated, if (me, wil] not sustain his action, the defend ant can avail himself of such insufficiency, either by demurrer, motion in arre.-t of judgment, or on assignment of error. If there are. any exceptions in the law by which the plaiutiff would have a right to l'ecover, he must allege ill his petition such exception. ;

Note 91.—Page v. Findley, 5 T., 391; Crosby v. McWillie et al., 11 T., 94; Cotton v. Jones, 37

In-the two eases of Coles v. Kelsey and Swenson v. Walker's Administrator we were fully aware that wo overruled (lie case, of Petty v. Cleveland, reported in 2 Tex. R., 404. That case was decided before Coles v. Kelsey was dismissed ; it was decided by a court cotnposcdktf two judges. I did not sit in it, but- if I had participated, as it was decided without the benefit of discussion on this question, it is most probable I would have concurred in it. We are, however, now satisfied that it was not correctly .decided, and feel it a duty to hold it. not a binding authority. The defense being such as can properly be, made available, on ait assignment of error in this court, by the. construction given to tiie statute, of limitations in Gautier v. Franklin (1 Tex. R., 732) and Hays v. Cage, (1 Tex. R., 501,) the. statute had barred the right of action before the commencement of this suit. The judgment must therefore be reversed and lemandtd.

Judgment reversed.

WiiEEiiUR, J.,

dissenting. I consider tin, decision ifi'this case (as it is considered by the court) in principle the same as that in the case of Swenson v. Walker. I regarded that decision at the time as in effect asserting' the doctrine that. the. statute' of limitations may be taken .advantage- of on error, though not mad-' a ground of defense, by demurrer or otherwise, in the court below. My opinion of the law of the case, as I thou expressed it, has undergone no change. That opinion constrains me. to dissent from the present, judgment, upon the ground that it is at variance with other decisions of tills court made prior to that in the. case of Swenson v. Walker, which address themselves to my judgment with equal authority as precedents, and with the, additional and controlling force of the most perfect conviction of their accuracy and justice. Wh-n the authorities and principles upon which those decisions are based shall have been, in my judgment, fairly met and answered, I shall bow with due submission to file authority by which they will then have been overruled. But until that is done I feel it my duty to adhere to the maxim of stare decisis.

For a more particular statement of the reasons of my dissent in this case, I refer to my opinion in the ease of Swenson v. Walker, (3 Tex. R., 03.)  