¶1Prior to- the Code, tire doctrine prevailing in this State was, that in all cases of concurrent jurisdiction, the statute of limitations was as obligatory on courts of equity as on courts of law. In- all cases .of rights, or demands of exclusive equitable cognizance, courts of equity adopted and obeyed them by analogy.—1 Brick. Dig. 698, §§ 852-3. The Code, affirming this doctrine, declares expressly, the filing of the bill-is the commencement of suit, and that the statute of limitations shall apply to suits commenced by bill in chancery.—Code of 1876, §§ 3758-9.
¶2In equity, advantage of the statute'may be claimed by demurrer, or by plea, or by the answer. When it is relied upon, if the case made by the bill is prima facie within the-statute, and there is any reason for excepting it, the matter of the exception should be introduced by an amendment of the bill.—1 Brick. Dig. 699, §§ 859-60. The bar of the statute is matter of defense, which may be invoked or waived, at the election of the parties in whose favor it operates. If not the matter of a plea in courts of law, or appropriately suggested as a defense in courts of equity, the presumption is that it is waived. Neither court can, of its own volition, apply it as a defense for the benefit of parties who have waived it.
¶3The case made by the bill, it may be, is prima facie within the bar of the statute of limitations. The parties entitled to the protection of the statute did not assign that as a cause of demurrer. They rested their defense wholly on other distinct grounds pronounced by the chancellor insufficient. It was not within his province to plead the statute for them— to interpose a defense they had waived. If they had interposed the statute as a defense, it may be, the complainants *389could, .by an amendment of the bill, have withdrawn the case from its operation.—Parker v. Jones, 67 Ala. 234.
¶4Ueversed and remanded.