Brooks v. McFarland

PHELAN, J. There can be no doubt of the coi-rectness of the charge of the court below, under the proof, if the statute of limitations had been properly pleaded. The precise question here raised by the demurrer to the plea of the statute of limitations was decided by this court in the case of Winston v. The Trustees of the University, 1 Ala. Rep. 124, where the court held, that where the declaration contained the common counts only, and the statute of limitations of three years was interposed as a bar, the plea is not good unless it avers that the demand of the plaintiff is for an open account. For the reason of the court at length, see that case. The court erred in overruling the demurrer. The error of the court in sustaining the plea, entered of course into the trial and instruction to the jury. The judgment is reversed, and the cause remanded.