#### ALLEN FINN v. HENRY M. FITTS.

A count, in a declaration for goods sold and delivered by the plaintiff, embraces equally the original promise implied by the law from the delivery of the articles, and a subsequent express promise to pay for them; because the time of the promise does not constitute a material part of the contract declared on. Hence, such subsequent promise, if made within three years, may be proved in support of the declaration, and to repel the plea of the statute of limitations.

This was an action of assumpsit, commenced by a warrant before a justice of the peace, tried at Orange, on the last Circuit, before his Honor Judge Dick, upon the pleas of the general issue, and the statute of limitations.

On the trial, the plaintiff proved a book account dated in 1826, and an express promise to pay it made by the defendant about two months before the warrant was issued. For the defendant it was objected, that the plaintiff had misconceived his action in declaring on the original cause of action, instead of the new promise; and of this opinion was his Honor, and nonsuited the plaintiff, who appealed.

P. H. Mangum, for the plaintiff.

Waddell, for the defendant.

Daniel, Judge,

after stating the case, proceeded : — We are of opinion that in the present case the question raised by the defendant, and on which his Honor decided, did not arise upon the pleadings. In an action instituted by warrant there is no other declaration than- the statement in the warrant “ how the- debt became due.” And whether the plaintiff’s case was made out by the original promise implied by the law from the delivery of the articles, or the subsequent express promise to pay for the articles so delivered, such case was embraced by the statement in the warrant. But even if the action had been commenced by writ, where a formal declaration is required, a count for goods sold and delivered 'would equally have embraced the first and the second promise. They are in truth identical, and made by the same man *237to the same man. The time of the promise does not constitute a material part of the contract declared upon. The plaintiff would be at liberty to prove the contract at any time before the bringing of the action. 1 Chitty’s Plead. 288. If the plaintiff allege a promise not in writing twenty years before, and to a plea of' the statute of limitations replies assumpsit iufra sex annos, it is no departure, for the time in the declaration was not material. Coll v. Hawkins, 1 Stra. 21. Mathews v. Spicer, 2 Stra. 806. Webly v. Palmer, 1 Salk. 222. Howard v. Jennison, Ib. 223. 2 Saund. 5, note 3. Archb. Civ. Plead. 226. When the day in the declaration is material, as in an action on a bill of exchange or a promissory note, the •question presented in this case might have arisen. Until it is properly presented, it would be rash in us to express a judicial opinion. The nonsuit must be set aside, and a new trial granted.

Per Curiam. J udgment reversed.