on rehearing.
Rombauer, P. J.We continued this motion under advisement for some time, mainly for the purpose of ascertaining whether we could, upon re-examination, reach a conclusion which would enable us to certify the case to the supreme court on a divided *478opinion. As neither of the judges feels warranted in declaring that the opinion is opposed to any decision of the supreme court, we are prevented from thus obtaining a review of the former rulings of that court, and are bound to abide by them as controlling our action. The mover complains that the opinion, in its discussion of the pleadings, assumes that the payments were made by James T. Carter, the maker, whereas the petition fails to allege by whom the payments were made. We assumed this, because it was so stated by both parties upon the oral argument, and because the plaintiff’s printed argument in this court recited that there is no pretense by th# plaintiff that any payment was ever made on the note by' any other person than the maker, Carter. The mover entirely overlooks the ■fact that this assumption was made in favor of the demurrer, and not in favor of the petition.
The statute of limitations is an affirmative defense. Both at common law and under the codes it must be •raised by plea or answer, except where the statute confers title, in which cases it becomes available under the general issue. From an early day an exception has been engrafted upon the rule in this state, and that is, that, where the statute creates a bar without any exception, the defense may be raised by special demurrer if the necessary facts appear upon the pleadings. In McNair v. Lott, 25 Mo. 182, it was said to be clear that a defense arising out of the statute of limitations! could not be used by way of demurrer to an action at law. In State to use v. Bird, 22 Mo. 470-473; Boyce v. Christy, 47 Mo. 70, and State ex rel. v. Spencer, 79 Mo. 314, the above exception was recognized. But all these cases, as well as Henoch v. Chaney, 61 Mo. 129, and St. Louis Gaslight Company v. City of St. Louis, 11 Mo. App. 55, limit the objection by demurrer to cases where it distinctly appears by the *479face of the petition that the action is necessarily barred.
Even under the rule in this state it was not for the plaintiff in his petition to allege facts from which it conclusively appeared that the cause of action was not barred. Unless the petition made a prima facie showing that the cause of action was barred, a demurrer would not lie. We would not be warranted in holding that a petition which alleges that certain payments were made, indorsed and credited on a note within the statutory period of limitation, negatived even prima facie a cause of action upon the note.
We have examined the authorities cited by the mover from the reports in this state on the main proposition discussed in the opinion, and find that they do not warrant a rehearing. We trust that, if this cause should be brought to this court again, after it has been tried upon its merits and the points in issue have been distinctly raised by the record, we may see our way to get an authoritative decision from the supreme court on the points involved. Our present decision goes no further than to hold that the demurrer to plaintiff’s petition was improperly sustained.