He ac liable then, because the bill was out of date. A rule for setting aside the verdict was accordingly obtained; and now upon its being called on, after Lord Ellenborough, C. J. had read the report, and referred to the case of Gould v. Johnson (a), his Lordship observed that the plea of actio non accrevit infra sex annos was quite unexceptionable, as it was a form of pleading which applied either to an executory or an executed contract; and he called on E. Lawes to support the rule, who agreed to what his Lordship had stated, but contended upon the evidence that it was not sufficient VOL. XVI. (a) 2 Ld. Ray. 838. Ff to 1812. LEAPER against ΤΑΤΤΟΝ. 1812. LEAPER against ΤΑΤΤΟΝ. to take the case out of the statute, the proof being only of a promise to pay when he was of sufficient ability, without any proof of his ability, which Mansfield, C. J. in Bicknell v. Keppell (u), seemed to think necessary in such a case. In the next place he contended, that supposing the promise sufficient to take the case out of the statute, the plaintiff should have declared on the special promise, and not on that which arises from the legal liability of the defendant to pay the bill according to the tenor of his acceptance; the evidence so far from proving that the defendant was liable, according to the tenor of his acceptance, proving the reverse, viz. that the law had discharged him from all liability on his acceptance. The issue here is upon a promise by this very bill, and therefore it is impossible that evidence of a subsequent promise can prove a promise by this bill; in Stafford v. Forcer (b), where in an action against an administrator upon a promissory note, it appeared on the face of the declaration that the cause of action accrued above six years before the testator's death, it was held that a verdict would not cure the defect, but that it was ground for arresting the judgment. And though in Williams v. Dyde (c) a subsequent promise by a bankrupt after he was discharged by his certificate, was allowed to be given in evidence upon a count for goods sold, and a plea of discharge under his certificate, yet that was a general count, and not like a count on a bill of exchange where the promise is to pay on a day certain. Lord ELLENBOROUGH, C. J. As to the sufficiency of the evidence of the promise it was an acknowledgment (b) 10 Mod. 312. cited in Str. 22. (a) 1 N. R. 21. (c) Peake's N. P. Cas. 68. by by the defendant that he had not paid the bill, and that he could not pay it; and as the limitation of the statute is only a presumptive payment, if his own acknowledgment that he has not paid be shewn, it does away the statute. Then as to the form of declaring insisted upon, it is enough to say that it has never been in use, but that it is the common practice to declare on the original contract, and if the statute be pleaded, the only question is, whether the defence given by it has been waived. If the objection were good, it would be necessary to recast all the modes of declaring by way of obviating the possibility of the defendant's taking advantage of the statute of limitations. But there is no occasion to go further into the question, because in this case there is a count on an account stated, which removes all objection. LE BLANC, J. This was not an express promise to pay when he was able, like the case alluded to in argument. BAYLEY, J. It was certainly good evidence upon an account stated; it was evidence of a debt; acknowledging his acceptance, and that he has not paid it, creates a debt. Per Curiam, Rule discharged. 1812. LEAPER against ΤΑΤΤΟΝ. END OF MICHAELMAS TERM. Ff 2 AN INDEX TO THE PRINCIPAL MATTERS. ACTION ON THE CASE. A 1. SERVANT put into the oc- 2. Though the general highway act, See 1. APPRENTICE. than three months afterwards, they ADMIRALTY, See IMPRESS, 1, 2. TLEMENT BY APPRENTICESHIP. such |