Barclay v. Barclay

Citations

• 206 Pa. 307
• 55 A. 985
• 1903 Pa. LEXIS 706

Syllabus

<p>Practice, G. P. — Pleading—Statute of limitations — Amendment.</p> <p>The statute of limitations is a defense upon facts, and must be pleaded. It cannot be made by a demurrer which raises only an issue of law. It is not a defense absolute of which the court will take judicial notice on the plaintiff’s pr-esentation of his case, either in his declaration or at the trial, for if the defendant does not choose to make it, it is not a part of the case at all. And the only way the defendant can make it is by plea.</p> <p>The defense of the statute of limitations cannot be raised by demurrer either at common law, or under the practice act of May 26, 1887, P. L. 271.</p> <p>In an action upon a promissory note brought six years after the expiration of the date of the note where the statement avers that the defendant' has always refused to pay the note, and an amended statement filed by leave of court sets forth facts sufficient to remove the prima facie bar of the statute of limitations, it is error for the court to enter judgment for defendant on the amended statement on the ground of the inconsistency between the two statements. In such a case the amended statement is the only one before the court.</p>