Wight recovered a judgment against Burnap on the 3d of November, 1847. Burnap sued out a writ of error on the 23d of September, 1852, which was not delivered to the keeper of the record until the 2d of June, 1853. A scire facias, issued at the samé time, was not put into the hands of the sheriff till the 1st of June, 1853. A motion is now made to dismiss the writ of error, because the statute of limitations operates as a bar to its prosecution.
The motion must be refused on two grounds. 1. A defence of the statute of limitations cannot be interposed by a motion to dismiss. It must be relied on by plea, so that the plaintiff may reply that the case is within the exceptions in the statute.
2. The record shows that no such defence can avail the defendant. The writ of error was sued out within five years from the rendition of the judgment. The issuing of the writ was the commencement of the suit in this court. The bar of the statute was not then complete. The failure to have the process served before the expiration of the five years, did not bring the case within the operation of the statute. It was served before the return day. There is, therefore, no pretence for saying that the plaintiff caused the writ to issue without any intention of prosecuting it.
The motion is denied.