#### SWISHER *v.*SWISHER’S ADMINISTRATOR.

Deposition — paper referred to — commencement of suit — first writ — consideration out of deed —independent agreement — statute of limitations — ride of evidence — notice and plea. Where a bill is referred to in a deposition, it must be identified before it is used in evidence. Where a writ is issued and returned non est, and an alias is after issued, the date of the first Is the commencement of the suit.

A consideration independent of that expressed in the deed may be shown, and an agreement independent of the deed to rebut an implied undertaking to pay for use and occupation. The same rule of evidence applies to the defence of the statute of limitations when set up by *notice*as under a plea.

Assumpsit, for the money, goods sold, and use and occupation. Plea non assumpsit with *notice*of the statute of limitations, and a setoff.

It was proven that the intestate sold a horse belonging to his son, the plaintiff, and was to pay $65 for him, and that the intestate lived in a house of the son for a time till the rent would amount to say $30. Depositions were offered as to certain items in *a bill exhibited to the imtness.*

Olds,

objected, that the bill referred to, was not returned; there is no evidence the paper now exhibited, is the one shown the witness; and the bill is without date. He insisted, also, that as there were two writs in this case, the second one was the commencement of the suit.

Collett,:C. J.

The bill must be identified as the one shown the witness, before it can be used in evidence. If so identified, it is evidence under the general issue. Where the first writ issued is not served, and an alias issue, the date of the *first writ*is the commencement of the suit.

The defence offered in evidence a deed from the plaintiff to one Williams, for the place on which his father lived, reserving his mother’s dower, and to his father the use of the house, &c. free of rent for his life, and a prior deed for the same land from the father to the son.

*756
      *Doane,*for the plaintiff,

objected to this as incompetent.

Doane,

objected, that the agreement was not in the deed, and that it could not be varied by parol. It is incompetent to show consideration out of the deed.

*Doane,*for the plaintiff,

insisted, that under the *notice*of the statute of limitations, the rule required of the defendant proof that the debt did not arise within the statute.

*Olds,*contra.

Collett, C. J.

The evidence is admissible — it shows the plaintiff’s admission that his father was to occupy free of rent, and the grant to him as an inducement for permitting it.

A witness was then called and asked about the agreement between the father and the son for the conveyance and the occupancy of the parents for life.

Collett, C. J.

The plaintiff seeks to recover for the occupancy of the place upon an implied promise to pay rent — it is surely competent for the defendant to show an oral agreement, that he should occupy free to repel the legal inference. It is not inconsistent with the deed, but independent of it. A consideration different from that expressed, in the deed may be shown by parol.

It was then proven, that the intestate gave the plaintiff, his youngest son, the place he lived on, worth *$2000,*in 1821, upon condition that he paid for his father *$500,*and suffered him to use the house free of rent for his life. He voluntarily made the deed on this agreement, and died in 1829.

Collett, C. J.

to the jury. The house seems to have been furnished, and is to be paid for, and the debt accrued within six years, for that the plaintiff will be entitled to a verdict. The law requires of the plaintiff, in proving his demand, to show, as near as may be, the time and place of the transaction, the time and place is apart of it; and if, upon the evidence, you are satisfied this transaction took place more than six years before the date of the writ, it is barred by the statute. It is not true as urged by the plaintiff, that because this defence is let in under a notice instead of a plea, that the rule of evidence is changed. It is the same under the notice as under a plea — the party holding the affirmative is looked to for proof. The objection here is, that the cause of action accrued within six years, and is with the plaintiff. The evidence is, that it was a good while ago. The arrangement took place twelve or fifteen years ago. The whole claim» are with you on the evidence. The son did right in securing a house for his father and mother — he deserves credit

*757for that, but what does he deserve for now setting up a claim for it against his father’s estate, while he holds the land as his own?

Verdict for defendant.