SALISBURY,

MARCH TERM, 1791.

#### Billews, Adm’r. v. Patrick Bogan.

By Wiklxahs, Judge. An acknowledgment made to an executor will prevent the operation of the statute of limitations, as well as if made to the testator. Ashe, Judge, contra. Verdict against evidence is not sufficient for a new trial, if justice is done by' it.

In this case, the debt bad accrued above three years before the commencement of the action, hut there was an acknowledgment of the note having been executed within *19three years : and per Wiliiams, on a motion for 'a' new trial, that is sufficient to prevent the bar by the the sia-tute, as well in the case of an executor as of the party himself who made the contract. He relied upon Salk. 29. PI. ¡9. Adopted by S Bac. 517. L. Ev- 181. 1 Morg. Ess. S31. — But Judge Ashe, contra, relying upon Salk. &8. Greene & Crain, and L. May. 1101. — But by both of the Judges, the jury in this case have found the debt not barred by the act of limitations •, whereas it is contended by the Counsel, it really was barred : suppose this to be true, yet this \erdict, although it be against evidence, has done justice botween the parties, and therefore the Court will not gralt a new trial. — Where the equity and justice of the case is with the verdict, the circumstance of its being against evidence, is not of itself sufficient to set aside the verdict, and a new trial was refused.

Note — The case of Sarel, adm’r v. Wine, 3 East 408, fully supports the opinion of Judge Ashe. Vide also, 2 Sand 63, a note b. 1 Chit. Plead. 204-5. 2 Chit. Plead. 96. But see Bank of Newbern v. Sneed, 3 Hawks, 500. As to the point of the new trial, Vide Allen v. Jordan, 2 Hay. 332. Jones v. Zollicofer, 2 Hawks, 492. Smith v. Shepbard, 1 Dev. 461.