Opinion
Fall Sessions, 1842.
APPEAL from the judgment of a justice of the peace in an action of assumpsit.
Ridgely, for plaintiff.
Cullen, for defendant.
This was an action of assumpsit for goods sold and delivered. The plaintiffs proved their book of original entries charging the goods to defendant under date of 22d November, 1836. They commenced action before justice Ewing on the 20th of March, 1841, and had judgment by default, from which the defendant appealed. Pro narr. in assumpsit. Pleas non-assumpsit and the act of limitation. Justice Ewing proved that the defendant called on him after the judgment below to take an appeal; and without denying or admitting the debt, merely remarked "'there are other Isaae Waples' in the county." He said nothing about the act of limitation.
Cullen, for the defendant, moved a nonsuit, on the plea of the act of limitation.
Ridgely, for plaintiffs, made the point that the defendant having failed to plead the act of limitation at the earliest period, viz: before the justice, could not avail himself of it on the appeal. The court would not allow the plea by way of amendment. (2 Harr. Rep. 444; 5 Burr. 2630, Blansh. on Lim.; Dig. 344.)
But the court said, the defendant has a right to plead the act of limitation on the appeal. The suit is precisely as if it had originated here and the respondent cannot refer to the record of the proceedings below, except to state how this case came here; and the date of the proceeding commenced below, in reference to the plea of limitation.
As to the other point, there is no admission which we would leave to a jury to take the case out of the act of limitation. The old cases went to a ridiculous extent on this subject, which the modern decisions are overruling. We cannot at least admit any thing to prevent the bar of the statute, which does not amount to an acknowledgment of a subsisting debt; nor leave any thing to the jury, unless such an acknowledgment can be fairly drawn from it.
The plaintiffs in this case must be nonsuited.