
    
      Ex’ors of Glenn vs. McCullough.
    Proof of a promise made to an executor will not support an alJcg’ation of a promise to a testator.
    ASSUMPSIT. — Tried before Mr. Justice Noll, at 7-iaurens, Fall Term, 1822.
    This was an action oh a promissory note. The promise was alleged to have been made to the testator. The defendant pleaded the statute of limitations, to which the plaintiff replied a subsequent promise. It appeared in evidence, tbat after the death of the testator, the executor presented the note to the defendant. He said he gave the note, and would not take the advantage of the statute of limitations ; but that it was given for rotten tobacco.
    The judge on the circuit, instructed the j'ury that the acknowledgment made to the executor was sufficient to save the case from the statute of limitations ; but that a promise to an executor would not support an action on a promise made to his testator ; the evidence did not support the issue, and the plaintiff could not recover.
    The plaintiff’s counsel then moved for leave to withdraw his record from the jury and amend his declaration, by laying a promise to the executor. The presiding judge was of opinion he had no authority to give such leave without the consent of the, opposite party, which was not obtained. The plaintiff then suffered a non-suit. This was a motion to set aside the non-suit, and for leave to amend the declaration, if the court should he of opin - ion that an amendment was necessary ^
   Mr. Justice Nott

delivered the opinion of the court:

One of the first rules of pleading is, that the proof must correspond with the allegations. To allege one thing and prove another, would be as far from leading to any conclusion in law as in logic. A person comes into court, prepared only to defend himself against the particular charge alleged against him ; and that principio pervades all description of cases, whether criminal or civil. Life and property would be equally insecure, were there any other rule to prevail. Proof of a promise therefore made to an executor, does not support the allegations of a promise to his testator. The authorities are so numerous and strong, that they preclude all reasoning on the subject.— The case of Dean & Crane, (1 Salk. 23,.) is directly in point. The. plaintiff declared as executor on a promise to testator. The defendant pleaded non assumpsit infra sex annos, and upon the trial of the issue, it appeared that there was a new promise made within six years, but it was a promise made to the plaintiff himself, and not to the testator : et per curiam — he should have declared accordingly. (See also Green & Crane, 2 Lord Ray. 110. Jones, et. al. Ex’ors of Vester vs. Moor, Administrator of Gray, 5 Binney, 573. Ballantine On Lim. 189. Sarell, Adm’r vs. Wine, 3 East, 408.)

With regard to the amendment of the declaration, this court concurs with the presiding Judge that the motion came too late after the cause had gone to, the jury ; and this court has not been in the habit of reversing the order or decision of the court below, where it was correct. If there had been any ground on which the cause could have been sent hack, it is probable the motion to amend might have been granted ; but, under the circumstance!? of this case, both motions must be refused.

O’Neal 8? Irby, for the motion.

Downs, contra.

Justices Johnson, Huger, Gantt, Richardson and' Colcoch, concurred.  