#### Kizer v. Bowles.

From Stokes.

An action was brought is 1821 on the book debt law, from the books h appeared that the articles were delivered in 1815. Held, that the principle on which the statute is founded, i;. the lapse of memory and the loss of evidence ; but ¡tu acknowledgment of the account within three years before suit brought, though such account should be o‘ more than five years standing, shall revive the original promise, lie-cause such acknowledgment furnishes evidence that the presumption on which the statute is founded doe;; net exist in the partis ha-case.

This case originated by a magistrate's warrant issued at the instance of the Plaintiff against the, Defendant* to answer the complaint &c. “in a plea of debt for the sum of fifty dollars due by a book accompt.” The pleas were the general issue, paymeut, set off, and the statute of limitations, ami Use Plaintiff was required by notice to produce his books. On the production of the hooks, it appeared that the articles named in the account were, delivered in 1815, the. warrant bore date June, 1821-The Defendant objected, tlntl as Plaintiff declared upon a book account, not signed by the Defendant, and of more than five years standing, the claim was barred by the operation of the 5th section of the act of 1756, ch. 57, (new revisal,)* It was not alleged that Defendant liad been absent from the state, and the Court sustained the objection. Plaintiff then offered to prove that the Defendant bad, within three years, next before suit brought, acknowledged the justice of the account, and agreed not to take advantage of the statute of limitations. *540The court, refused to receive the evidence, and a verdict was returned for the Defendantj a new trial having been moved for and refused, and judgment rendered, piaintiif appealed.

The case was submitted by Martin, for the appellant.

Ham. Jones, for appellee.

The act of 1756, commonly called the book debt law, to prevent, the production of ótale accounts, after the witnesses who might disprove them, were either dead or removed, or from the lapse of time, might have forgotten the often trivial circumstances relating to them, has enacted in its 4th section, that ** no book of accounts, although the same be proved, by witness or witnesses, shall be admitted, or received, in evidence,55 if above five years standing. This is not an act of limitation, to the cause of action, it is only an objection to the quality of the evidence ; it is not a bar to the cause of action, nor need it be pleaded, any more than if the Plaintiff had offered, under the first section of the book debt law, to swear to his account, and the clause limiting him to two years, were objected; in such case, it never could be pretended that it was necessary to plead the act, and if it need not be pleaded, it is an objection only to the admissibility of the testimony, and as such, cannot be affected by the arguments or admissions of either party.

But the Plaintiff has endeavored to vary the case, by offering to prove the Defendant’s acknowledgment, that the account was just; this is but another circuitous mode of making the book evidence. The form of action, chosen by the Plaintiff, precludes him from the benefit of this acknowledgment. The magistrate’s warrant, must here be deemed the declaration, act of 1794, ch. 13-, sec. 8, and by that, Plaintiff sues for a “ debt, due by book account.” He might have brought a more comprehensive action, assumpsit, in which, if he could make out a distinct and entire promise, without reference to *541Use. book, he might recover ; but here, he has voluntarily narrowed the ground on which he stands, he has confined himself to a particular form of action, and to a pas titular sort of testimony. A’ic has been permitted to give in evidence that which his declaration' did not demand, and which the Defendant had no reason to believe would be offered. This case is stronger than that of Scroler v. llarrviglo-i, (1 Hariohs 192,) then the Plaintiff neglected to set forth the law under which he claimed ; but here, if the Plaintiff be permitted to give, in this testimony, he will have set forth the facts of Ids case, falsely : he first told ns, that the evidence of his debt, ami the groundwork of his action, was a book account, now he would have it, a parol promise to pay. Even had the Plaintiff here brought acsnm}teii, it may be doubted, whether lie could avail himself of the acknowledgment that the account'was just. The admission is nothing, unless the book is brough- in to assist it; it refers directly to the hook, and that is excluded by law.

*

Note- — “ Provided also, that no book of accounts, although the same may be proved by witness or witnesses, shall be admitted or received as evidence n any action for goods, wares, or merchandize delivered, or for work, done above five years before the said action brought.; except in case, of persons being out of the government, or when the. ao“ count shall be settled and signed by the parties.”

Taylor, Chief-Justice.

Where a Plaintiff’s claim, under the book-debt law, is proved, solely by his own oath, he is not entitled to recover for any articles delivered more than than two years before, the action brought. But, if, instead of his own oath, lie relies upon indifferent testimony, he may, under the 5th section, recover upon a book account, for goods sold, or work done, within five years before the commencement of the suit; but even in that case, the book' of accounts shall not bar received in evidence for goods sold, or work done, more than five years before the action brought.

It was thought, by the legislature, that the Plaintiff’s memory could not be safely trusted, after the lapse of two years, biased as it might be, by the interest he felt in the case; and that, after the lapse of five years, even disinterested witnesses could not be implicitly confided in, or that the Defendant might have lost the evidence of payment.

*542But it is objected, that five years having expired before the issuing the warrant, the account could not be established, even hy indifferent witnesses. It is true that they could not, after that time, prove the entries in the book, for the mischiefs likely to arise from thence, were precisely what the act, by its limitation, intended to obviate. But if indifferent witnesses prove an acknowledgment of (ho account, within three years before issuing the warrant, what possible evil can thence arise ? The effect of such an acknowledgment must be the same, as it is in cases arising under the common statute of limitations, a revival of the original promise, not the creation of a new cause of action; for the lapse of time does not extinguish the debt, but only suspends the remedy. Such evidence places the case omthe same footing, as if it were brought within five, years. That, in point of fact, there was no surprise on the Defendant, is manifest from this, that he pleaded .the statute of limitations, thereby intending to insist that the book could not be proved by indifferent witnesses, if the «articles were delivered, or the work done, more than three years before the issuing the warrant.

Now the words of that statute aro, that suit must be brought within three years next after the cause of such action or suit, and not after j yet the declaration, except against executors, charges and relies upon the. original contract j and if the statute of limitations be pleaded, and the cause of action had, in truth, occurred more than three years before suit brought, the only question is, whether the defence given by the statute is waived; and it is waived by a new promise.. — (16 East. 419.)

Nor does even the replication to the plea, state such new promise, or acknowledgment 5 it simply denies the plea, and refers to the promise, as set forth in the declaration. — (2 Chitty Plead. 605.) The principle on which the statute is founded, is the- lapse of memory and the loss of evidence : but when aa acknowledgment is proved *543to have been made, within I he limited period, it furnishes evidence that the presumption, on which the law proceeds, is contrary to the fact in the particular case. The very same reasoning applies to the book-debt low, which, without such si construction, will put debts, thus evidenced, upon a worse footing than other simple contracts, and instead of convenience and beneficial effects, which the legislature meditated, will be productivo of the greatest mischief,

Hall, Judge.

It is not necessary that the book-debt law should be pleaded by the Defendant, in order to bring it into operation. It operates upon the claim of the Plaintiff, it declares that no book of accounts, although tfie saíne shall be proved by witnesses, sisal! be admitted or received, if the items in it were of five/.years standing, when the suit, was brought. This must be understood to mean, when the Plaintiff cannot establish them, independent of the book. As when a witness declares that the entries in a book were in his hand-writing, that he made no such entries, unless he delivered the articles themselves, or saw them delivered by others, but that he has no recollection of the delivery of such articles, independent of the book in which the anides arc charged. In such case the Plaintiff’s claim rests upon the book, and the evidence given by the witnesses, and, in such case, the act forbids the book to be received in evidence.

But when the delivery of the articles, &c. can be proved by evidence, independent of the book, although they may be charged in a book, the case does not fall within the act, which points out the method of proving book-debts $ and so, a promise to pay the debt, or an acknowledgment of it, is competent and admissible evidence, and not within it.

1, therefore, think a new trial should be grassiest

Henderson, Judge, concurs,