
    John W. Lindsay, ads. John Jamison, Adm’r.
    Where the Plaintiff, an Administrator, charges in his declaration a promise to his intestate, and the statute of limitations is pleaded, replication that within four years, defendant promised intestate, and since his death the administrator; demurrer supported to so much as replied a promise to the administrator, as a departure from the declaration; hut new trial granted to plaintiff with leave to add a count, to meet the justice of the case.
    The replication must not depart from the allegations made in the declaration in any material matter.
    Motion for nonsuit refused, because the case was proved as stated upon the record, though that was defective.
    " I have paid the money, hut if I cannot shew that I have paid it, I will not plead the statute,” is sufficient to take a case out of the statute of limitations.
    This Was an action of assumpsit brought by the plain-4tiff as administrator of Hugh Wallace, deceased, upon a note of hand given by the defendant to the deceased* and tried before judge Waties, atNewberry, March, 182G. The plaintiff changed in his declaration a promise to his intestate only. The defendant pleaded the general issue and the statute of limitations. Upon the plea of the gem eral issue, issue was joined, and to the plea of the statute-of limitations the plaintiff replied a subsequent promise to his testator within four years, and also to the administrator since the death of the intestate within four years, and demurred to that part of the replication which alleg* 
      ed a promise to the administrator within four years, on the-ground that it was a departure from the case made in the declaration, inasmuch as there was no count on a promise to the administrator.
    The testimony adduced to take the case out of the statute was a promise to the administrator. There was no testimony to support the issue joined upon a promise to the intestate.
    The judge overruled the demurrer, holding that the issue joined upon a promise to the intestate, was supported by proving a promise to the administrator. The acknowledgment of the debt was insubstance as follows : “ I have paid the money, but if I cannot show that I have paid it, I will not plead the statute.”
    The defendant appealed, and moved to reverse the decision on the demurrer, and for a nonsuit.
    
      Nance, for the appeal.
    The judgment should be reversed, for the second part of the replication was a departure from the case made in the declaration, inasmuch as there was no count in the declaration on a promise to the administrator. For a nonsuit, he urged that there was no other evidence upon the issue tendered to the country upon a promise to the intestate within four years, other than the promise which was proved to have been made to the administrator, which was clearly inadmissible, and not evidence to support the count in the replication or in the declaration upon a promise to the intestate; and that it was not sufficient to take the case out of the statute.
   Cuma, per

Johnson, J.

The settled rule is that the replication must not depart from the allegations set out in the declaration in any material matter, and the reason given for it is, that if parties were permitted to wander from fact to fact, and to supply a new cause of action as often as the defendant should interpose a legal bar to that which the plaintiff first set out, it would lead to endless prolixity, and it would evqn be possible by this means to prevent them from ever coming to issue. Without inquiring for a further illustration of the rule, it will be sufficient to remark, that it has been frequently applied to the precise question under consideration, and it has been repeatedly decided that such a replication is a departure. 1 Chitty Pl. 618-9; 2 Ld. Ray. 1101; 6 Mad. 309; 1 Salk. 28; 3 East. 409; 5 Binney 576. The demurrer ought therefore to have been sustained. It would appear from the evidence however, that the merits of the case is with the plaintiff, and for that reason the court will order a new trial, and give the plaintiff leave to amend his declaration by adding a count on the promise made to the plaintiff as administrator.

As the case stood on the record in the court below, it was literally proved on the trial, and for that reason the motion for a nonsuit cannot prevail. But connected with this ground the question arises, whether the declaration of the defendant, “ I have paid the money, but if I cannot show that I have paid it, I will not plead the statute,” would be sufficient under a proper state of the pleadings to take the case out of the statute of limitations ?

The cases on this subject have all been collected in the case of Burden vs. M’Elhanney, 2 Nott & M’Cord 60 ; from which it appears, that if there is any acknowledgment of a subsisting debt, or admission that the accounts between the parties are unsettled, it will be sufficient to take the case out of the statute. The case of Freeman vs. Fenton, Cooper 584, bears a striking resemblance to the present case: “then prove your debt and I will pay it;” u I am ready to account, but nothing is due,” were held sufficient. In this case the declaration “ I have paid the money,” would unconnected with the subsequent words, seem to exclude the idea of the acknowledgment of a subsisting debt or a promise to pay. but connected with the concluding words of the sentence it is evidently put on the footing to pay if he failed to prove the payment. It was therefore a promise to pay on that condition, and having failed to prove it the liability attached.

New trial granted, and leave given to plaintiff to amend his declaration by adding a count,  