
    Greening, Executor of Greening, against Brown.
    
      December, 1824.
    1, A promise of Executor, though not in writing', takes the case out of the Statute of limitations.
    2, Demurrer to replication to plea in bar overruled, the judgment is final, unless defendant pays and obtains leave to plead further.
    3, Judgment against Executor de bonis propriis is Error.
    
      H. G. Perry for plaintiff
    
      W. Crenshaw for defendant in Error.
   JUDGE Crenshaw

delivered the opinion of the Court.

This was an action of assumpsit against the defendant, as executor, on a promissory note given by his testator. The defendant plead non assumpsit, and pon assumpsit within six years. Replication, a special promise made by the executor, to which there was a special demurrer setting out for cause that the promise of the executor was not averred to be in writing. The Circuit Court overruled the demurrer and gave judgment for the plaintiff. The defendant now assigns as Error,

1, That the demurrer was overruled.

2, The judgment should have been respondeas ouster, and not final; and,

3, Should have been de bonis testatoris, and not de bonis propriis.

If the action had been on a promise by the executor to pay the debt out of his own estate, the Statute of Frauds would require that the promise should be in writing; but in order to take the case out of the Statute of limitations, it was not necessary that the promise of the executor should be in writing.

As to the second assignment — The Record does not shew that the defendant prayed for leave to plead further, and the Court was not bound to grant it unless it had been asked for; but,

On the third assignment, the judgment must be reversed, and the proper judgment rendered here.  