A motion for a rehearing was disposed of by tbe following opinion.
By the Court,
DixoN, C. J.Tbe appellants ask for a re-bearing, on tbe ground that we erred in bolding tbat tbe defendants could avail themselves of tbe statute of limitations on demurrer to tbe complaint, upon tbe face of which it appeared tbat tbe statute bar was complete before tbe suit was commenced, and tbat was one of tbe causes of demurrer assigned.
Their counsel thinks we must have overlooked section 1 of chapter 138, E. S., which declares tbat “tbe objection tbat tbe action was not commenced within tbe time limited, can only be taken by answer.” We have carefully examined tbe question, and are still of tbe opinion tbat tbe decision was correct. This provision came with tbe Code, in which tbe word answer is frequently used in a general sense, so as to signify any pleading by which an issue, whether of law or of fact, is made or tendered on tbe part of tbe defendant. It is thus employed more than once in section 27, chapter 132, E. S. Section 7, chapter 133, and sections 2, 3, and 5, chap. 124, are likewise instances of this general use of tbe word. We think, with Mr. Yan Santvoord, tbat it is used in this enlarged sense in tbe section referred to, and includes a demurrer when tbat form of pleading is properly applicable to tbe case. It would certainly be very unphilosophical to say tbat tbe defendant, in order to take advantage of tbe facts stated in tbe complaint, which be desires neither to contest nor qual*60ify, but to admit, must repeat them in. Ms answer and tben insist that they constituted no cause of action against him. angler, in its strictest sense, cannot be so framed. It would not comply with tbe requirements of the statute, B. S., chap. 125, section 10. It would be neither a specific nor a general denial of the material allegations of the complaint, nor a statement of new matter constituting a defense or counter claim. It would be nothing more nor less than a new and most anomalous form of demurrer. A demurrer, in its more liberal sense, is an answer in law to the complaint, and has so been held. New Jersey vs. New York, 6 Peters, 323. We think therefore that the word “answer,” in the statute before us, was used not in its technical, but inits more liberal sense, and that it includes a demurrer in cases where it appears upon the face of the proceedings that the action was barred before it was commenced. The effect, then, of the provision is, to require the defendant, in all cases where he relies upon the bar of the statute, to say so, and by his pleading to apprise the plaintiff witMn the time prescribed by law for answering. If the objection appears from the complaint, he may demur, assigning that as the ground. If does not so appear, he must answer the facts showing himself to be within the protection of the statute. He cannot, as in other cases of an insufficient statement of the cause of action, take the objection upon general demurrer, or upon the trial, it being omitted in the answer, or after default. He waives it unless made the specific ground of defense in his answer, whatever may be the more strict or technical name of that pleading. Such we believe to have been the real motive for the introduction of this provision.
This view is corroborated by what is deemed the true principle upon wMch an action may be sustained, on the foundation of a new promise, where the original cause has once been barred by the statute. It is, that the plaintiff does not sue upon the old cause of action, wMch is barred and gone, but upon the new promise, treating it as a new contract, springing out of and supported by the original consideration. Van Keusen vs. Parmerlee, 2 Comstock, 523. This is in accordance with the settled doctrine of this court. *61We have frequently held that the lapse of time which barred the remedy carried with it the right, and that the cannot, by reviving the former, open the doors of litigation so as injuriously to affect the latter, against the will of the person whose title has once been thus confirmed. It is an unconstitutional interference with vested rights of property. Knox vs. Cleveland, 13 Wis., 245, and cases there cited. There is, therefore, in such cases no inconsistency, but the most substantial reason for requiring the plaintiff to set up the new promise. It is his real cause of action. More especially would this seem to be the case now, since the statute declares that “no acknowledgement or promise shall be sufficient evidence of a new or continuing contract * * unless the same be contained in some writing signed by the party to be charged thereby.” R S., chap. 138, section 37.
And in other cases, where, owing to intervening facts and circumstances, the action has not been completely barred, and the plaintiff relies on showing them for the purpose of taking it out of the operation of the statute, it would seem very consistent and proper that he should be .required to state them in his complaint.
The motion must therefore be overruled.