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.