#### Rescarick Ayers, Appellant, *v.*George M. Richards, Appellee.

APPEAL FROM MORGAN.

Where the introductory part of a declaration is in the appropriate f rm for debt! but all the counts are strictly and technically in assumpsit, it will be considered a declaration in assumpsit.

Where the items of an account are read to a party, and he admits the correctness of each item and of the whole account, but as to certain items, stated that he thought the whole or a part of them, had been paid by his son, and that he thought the account was correct, and that he would see his creditor and settle , with him, such admissions do not show a new promise within five years.

*149In order to take a case out of the statute of limitations, there must be a promise to pay the debt; sucli promise may be implied from an express and unqualified admission that the debt is due and unpaid, nothing being said or done at the time to rebut the presumption of a promise to pay; but the admis-ion of the debtor, that an account is correct, that he received the goods or money, or that he executed the note, will not be sufficient for the purpose, unless it is also; expressly admitted that the debt is still due and unpaid.

In an action of assumpsit, on an open account, the last item of which accrued more than five years before the commencement of the action, the statute of limitations is a good defence.

The declaration in this ease commenced as in debt, and concluded to the damage of the plaintiff of one thousand dollars. The body of the declaration had but six counts, which were all in assumpsit. To this declaration defendant replied, that he did not owe the sum of $1,000 00, demanded as debt in the plaintiff’s declaration, &c., and gave notice with his plea, that he would rely upon the statute of limitations of five years, as a bar to the plaintiff’s demand.

By agreement, the cause was tried by the Court, Woodson, Judge, presiding, at September term, 1850, and a judgment was rendered for the plaintiff, for $429 "90, whereupon the defendant below appealed to this Court. Upon the finding of the issues for the plaintiff, defendant interposed a motion in arrest of judgment, which was overruled. The only testimony in the case shows, that the witness called upon appellant, and “showed him the account, and jead over to him each item of account, and as he read, Ayers admitted to tho correctness of every item, and of the whole account, but as to the items for the board of his son, he stated that he thought that item, or a portion of it, had been paid by his son. He further stated to witness, that the account was correct, and that 'he would see Richards, and settle with him. On his cross examination, the witness stated that Ayers never intimated to 'him that he had any offsets against account, or that it had been piaid, exccprt that he had supposed his son had paid for the board or a part of it. On being asked whether Ayers promised to piay the account, witness stated that he made no other promise than that he would see Richards and settle it.” The appellant moved the Court for a new trial, upon the ground “that on the evidence in the case, the Court ought to have given judgment in favor of the defendant, under the statute of limitations of five years,” which was also overruled.

D. A. Smith, for'Appellant.

*150M. McCootel, for Appellee.

Caton, J.

The introductory part of this declaration is in the appropriate form for debt, but all the counts are strictly and technically in assumpsit. This, according to the cases of Cruikshank *v.*Brown, and McGinnety *v.*Laguereure, 5 Gilman, 75, and 161, is a declaration in assumpsit, and not in debt. The counts being all in assumpsit, there was no misjoinder, and the motion in arrest of judgment was properly overruled.

It can make no difference in the result here, whether we consider the testimony of McOonnel as so referring to the account filed with the declaration, as to enable us to look into that as a part of the evidence or not. By doing so, we see that more than five years had elapsed from the date of the last item in the account, and the commencement of this action, so that the statute of limitations constituted a good defence. Nor did the testimony of the witness show a new promise within the five years. He says he “read over to him each item of the account, and as he read, Ayers admitted to the correctness of every item, and of the whole account; but as to the items of the board of his son, he stated that he thought that that item, or a portion of it, had been paid by his son. He further stated, he thought the account was correct, and that he would see Richards and settle with him.” In order to take a case out of the statute of limitations, there must be a promise to pay the debt. Such promise may be implied, it is true, from an unqualified admission that the debt is due and unpaid, nothing being said or done at the time, rebutting the presumption of a promise to pay. It is not sufficient that the debtor admitted the account to be correct, or that he had received the goods or the money, or had executed the note sued on, but he must have gone further, and admitted that the debt was still due and had never been paid. The bare admission of the correctness of the account, or genuineness of the note sued on, is no more a satisfactory answer to the statute, than would be the testimony of .a witness proving the same facts. The statute presupposes the debt to have been .due, and that there is no evidence that it has ever been paid. It would be absurd to say, that a promise shall be implied, by the bare admission of the party of what the law itself supposes to be true. *151It has been even regretted by many learned Courts, that parol testimony has ever been allowed to do away with the express statute, and especially, that any implied promise has been allowed to have that effect, for it certainly offers great inducements to pervert and distort the statements of parties, in order to make out a new promise. There is certainly great discrepancy in the decisions of different Courts on this subject, and some Courts have undoubtedly allowed a looser rule to prevail, than the one which we have adopted, but we think the"weight of authority, and certainly the reason of the case, are in favor of the views which we have stated.

It is true here is an' inference, and a very strong inference, that this account had not been paid. But there should be an express admission of that fact, in order to infer the new promise. But one inference is. to be admitted. Ho more should be admitted, when dispensing with an express act of the legislature. An inference upon an inference would be too unsubstantial for such a result. By the rule which the current of decisions has compelled ns to adopt, the statute may be substantially repealed in the particular case. Were the question a new one, we should hold that no suit could be maintained upon the old cause of action, but only upon a new and express promise, for which the old cause of action might be a sufficient consideration, as in case of a debt which has been discharged by bankruptcy.

This being an action of assumpsit, on an open account, and the last item of the account having accrued more than five years before the commencement of the action, the statute of limitations was a good defence, and a new trial should have been granted.

If it be objected that the account, not being copied into the bill of exceptions, but only referred to by the witness, so that we cannot know what that account was, then we say, that as the evidence fixes no amount, except by reference to the account ■sued on, when that is withdrawn from view, there is no evidence whatever to justify the verdict. If we can look at the account filed with the declaration, and referred to by the witness, to ascertain the amount, then we cannot help seeing, that the last item bears date more than five years before the commencement of this suit.

Let the judgment be reversed and the cause remanded.

*Judgment reversed.*

Treat, 0. J., dissented.