ON REHEARING.
Opinion delivered April 22, 1907.
McCulloch, J.Appellant contends, in a petition for rehearing, that inasmuch as the act of 1899 imposing the penalty adjudged in this case was repealed more than two years before the commencement of this action, the action is barred by limitation.
The statute provides that all actions upon penal statutes to recover the penalty shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued. Kirby’s Dig. § 5068.. The offense stated in the complaint continued up to the repeal of the statute imposing the penalty, and was therefore barred when the action was commenced.
The statute of limitation was not pleaded as a defense. Was it necessary to do so in order to invoke the benefit of the statute bar?
It is contended on behalf of appellant that in actions to recover a penalty the statute of limitation need not be pleaded because, it is said, the cause of action is dependent upon the institution of the action to recover the penalty within the time prescribed, and the expiration of the statutory period cuts off the right of action. The Supreme Court of Colorado in an action to recover a penalty of double the value of stock killed by a railroad, the statute authorizing a recovery of such penalty on account of the failure of the railroad company to post notices of the killing of stock, held that the defense of limitation was available without a special plea being interposed. We have recently held to the contrary under a similar statute. St. Louis, I. M. & So. Ry. Co. v. Stites, 80 Ark. 72.
The general rule established by the decisions of this and most other courts is that in all civil actions the statute must be pleaded in some way, otherwise it is deemed to have been waived as a defense. The Encyclopedia of Pleading and Practice (vol. 13, p. 282) states the rule of practice to be that in actions to recover penalties either a plea of the general issue or a special plea of the statute of limitations is sufficient to .render it available as a defense. This statement is 'sustained by adjudged cases. Moore v. Smith, 5 Me. 490; Frohock v. Pattee, 38 Me. 103; Pike v. Jenkins, 12 N. H. 255; Gebhart v. Adams, 23 Ill. 397.
The Code of Criminal Procedure of this State provides that by a plea of not guilty all matters of defense, other than that of former conviction or acquittal, are put in issue in criminal prosecutions. Kirby’s Dig. § 2298. But a plea of the general issue is not permissible under the Code of Practice in Civil Cases. Hecht v. Caughron, 46 Ark. 132. And all defenses not pleaded are deemed to have been waived.
The statute imposing the penalty authorizes its recovery by civil action. Railway Co. v. State, 56 Ark. 166; Hammond Packing Co. v. State, 81 Ark. 519. This is the construction we place upon it; and when that is determined, it follows that the rules of'practice in civil actions govern.
We are also asked by appellant to reduce the penalty from the amount assessed by the trial court, $2,500, to the minimum fixed by statute. Ordinarily, this court will not reduce the amount of penalty assessed by a trial court or jury, unless it is clearly excessive and amounts to an. abuse of the discretion lodged by law in the court or jury. But the learned trial judge assessed the penalty in this case under the erroneous impression that the statute was still in force, and that the offense continued from the time the statute went into effect until the commencement of this action. Doubtless, this influenced him in fixing the penalty at more than the minimum sum. It appears to us that if he had arrived at the correct conclusion that the statute had been repealed for more than four years, and that the defendant had not, for that length of time, been doing business in the State in violation of the statute, he would not have assessed a greater penalty than the minimum amount fixed by the statute. These considerations alone constrain us to reduce the penalty to $1,000, the minimum amount fixed by the statute. The cost of appeal will, however, be adjudged against appellant.
The petition for rehearing is therefore denied, but the judgment is modified as above indicated.