#### EDWARD BRANNOCK vs. HENRY BUSHINELL.

Where an action of debt is brought on a simple contract, no subsequent promise, however explicit, is sufficient to take it out of the statute of limitations.

AotioN OK debt, tried before bis Honor, Judge PebsoN, at the Fall Term, 1856, of Caswell Superior Court.

The action was upon an unsealed note, dated 20th March, 1844, due one day after date. The writ was issued on the 6th of October, 1853. The defendant pleaded the statute of limitations ; to which plaintiff replied that, within the three years preceding the issuing of the writ, the defendant promised to pay the said note.

There was evidence tending to establish the plaintiff’s replication; but as the case turned upon the form of action, it is not deemed necessary to state it.

It was agreed by the counsel in the Court below, that the jury should give their verdict for the plaintiff, subject to the opinion of the Court upon the question of law, whether the evidence was sufficient to take the case out of the operation of the statute of limitations, and that, in ease he should be of opinion with the plaintiff, he should recover the amount found by the verdict, but, if of a contrary opinion, a judgment of non-suit should be entered.

The Court, being of opinion with the plaintiff, gave judgment accordingly; from which the defendant appealed.

Morehead, for plaintiff.

Hill and Bailey, for defendant.

Battle, J.

An objection founded upon a reason which was not adverted to in the Court below, but which is insisted on in the argument here, is fatal to the plaintiff’s claim, at least in its present form. The action is debt, upon a promissory note, and as such, no promise, however explicit, is sufficient to'take it out of the operation of the statute of limitations. *34The case of Morrison v. Morrison, 3 Dev. Rep. 402, which was an action of debt upon an unsealed engagement of the defendant’s intestate, to convey to the plaintiff a tract of land, is directly in point. That case was based upon the English one of A’Court v. Cross, 11 Eng. Com. L. Rep. 124 ; and the principle has been recently recognised again in this Court, See Thompson v. Gilreath, 3 Jones’ Rep. 493. The principle is, that the action of debt, being founded on the original contract, is barred by the statute, and then the replication that the defendant promised to pay within three years next before suing out the writ, is a departure in pleading, and, therefore, inadmissible, and of course no testimony can be allowed to support it. As the verdict was taken in the Court below, subject to the opinion of the presiding Judge, whether the evidence was sufficient in law to take the case out of the operation of the statute of limitations, and as we are of opinion that it was not, though for a reason not in the contemplation of the parties, we must reverse the judgment rendered for the plaintiff, and direct a judgment of non-suit to be entered here. It is not a proper case for allowing the amendment asked for by the plaintiffs counsel. Grist v. Hodges, 3 Dev. Rep. 204 ; State v. Muse, 4 Dev. and Bat. 322. Let the judgment be reversed and a judgment of nonsuit entered.

Per CuRiAM. Judgment reversed.