Dissenting Opinion.
Davis, J.With some hesitation on some of the ' propositions involved I concur in the main in the conclusions reached by Judge Gavin, but I am clearly of the opinion that the cause of action alleged, in the amended complaint must be regarded as having been instituted as of the date on which appellee tendered his *333amended complaint for filing, and that lie cannot by bringing a new cause of action growing out of the same facts, by way of amendment, bar the statute of limitations against it. In other words, as the complaint fails to negative the exceptions provided for in the statute, it is not bad upon its face, and an answer setting up the statute of limitations is necessary to make such defense available. Blake v. Minkner, 136 Ind. 418.
Piled May 16, 1895.