
    [Pittsburg,
    Sept. 24, 1822.]
    WITHERUP against HILL.
    - IN ERROR.
    XU support of an action for money had and received, a receipt signed by. the deten» • . dant for goods deposited in his store by the plaintiff, is evidence.
    If there be anything in the plaintiff’s case which entitles him toan exemption from the operation of the act of limitations, he ought, when the act is pleaded, to set it forth in his replication. If he omit to do so, and join issue on the plea, it is incumbent on him to prove an assumption within six years,
    The defendant in error brought an action in the Court of Common’ Pleas of Venango county, against the plaintiff in error, in which he declared for money had and received, &c. The defendant pleaded non assumpsit and payment, and non assumpsit infra sex annos ; to which the plaintiff replied that he did assume within six years ; whereupon issue was joined..
    The plaintiff offered in evidence on the trial two receipts signed by the defendant, for certain goods deposited by the plaintiff in the defendant’s store, one dated- .Tune 12, 1806, the other July 7th, 1806.- The defendant objected that the receipts were inadmissible under the pleas put in.- The plaintiff answered, that this being a case of trust, the act of limitations did not apply ; to which it was replied that the - action ought then to have been against the defendant as -bailiff,' factor,-agent or receiver, or in account render.
    The-court overruled the objection, admitted the evidence, and afterwards charged the jury, that from the nature of the plaintiff’s demand,, the act of limitations, was no bar to his recovery. The counsel for the defendant excepted to the opinion of the court, both on the. question of evidence and in their charge to the jury..
    
      
      Seld'en and Farrelly, for the plaintiff in error.
    
      Forward, contra.
   Per Curiam.

This was an actioafor money had and received, &e. pleas, non assumpsit, payment, and statute of limitations, and issues. The plaintiff offered in evidence two receipts signed by the defendant for goods deposited in his. store by the plaintiff. This evidence was objected to by the. defendant, but admitted by the court. It is our opinion that the evidence was properly admitted. It was the first link in the plaintiff’s chain of evidence; having proved the. deposit of the goods, he might have have gone on to prove that they had been sold by the defendant, and the money received by him, which would have been directly in support, of the action. But there was another exception to the charge of the court. The defendant prayed the court to instruct the jury, that if they should find, that the defendant did not make an assumption within six years before the bringing of the suit, their verdict ought to be for the defendant, on the issue of the statute of limitations, but the court charged, “ that from the nature of theplain-tiff’s demand, the statute of limitations was not a bar.” In this, we are of opinion, there was error. The plaintiff’s demand, was for money received by the defendant for his use, and in his replication to the plea of the statute of limitations, he affirmed that the defendant assumed within six years. The burthen of proof was therefore on him. If there had been any thing particular in his case, whieh would have exempted: it from the statute of limitations, the plaintiff ought to have set it forth in his replication, and not have replied that the defendant did assume within six years. On the issue joined, it was incumbent, on the plaintiff to prove an assumption'within six years, and-failing in that, the verdict ought to have been against him. The judgment is to be reversed,"and a venire de novo awarded.

Judgment reversed and & venire facias denovo awarded.  