
    Beall v. Edmondson.
    [Wednesday, July 7, 1790.]
    Statute of Limitations — Store Account — New Promise.
       — A new assumpsit for a store account tarred by the six months’ act of limitations, binds the debtor.
    This was a suit instituted by Beall, in the General Court, for goods, wares and merchandizes, sold and delivered. The declaration being in the usual form, an issue was made up on the plea of non assumpsit, and the following verdict was found by the jury:
    *We find for the plaintiff 611. 18s. if the express assumpsit of the defendant, on the 10th day of March, 1783, to pay for the goods, wares and merchandize, in the declaration mentioned, which were delivered on the 20th day of July, 1781, takes the debt out of the act entitled, “An act for discouraging extensive credits and repealing the act prescribing the method of proving book debts:” otherwise, we find for the defendant.
    The cause was adjourned to this Court.
    Marshall, for the plaintiff.
    The act of 1779, [c. 3, TO Stat. Barg. 133,] is, in fact, nothing more than an act of limitations. The act of 1705, [c. 35, 3 Stat. Barg. 381,] which is the general act of limitations, declares, “that all actions of trespass, &c. shall be brought within the time therein after expressed, and not after; that is to say, the said actions upon the case, &c. within five years next after the cause of such action has accrued, and not after:” And the act of 1779 declares, that all actions or suits, founded upon account for goods, wares and merchandize, sold and delivered, or for any articles charged in any store account, shall be commenced and sued within six months next after the cause Of such action or suit, or the delivery of such goods, wares and merchandise, and not after; except that, it) case of the death of the creditors or debtors before the expiration of the said term of six months, the further time of twelve months, from the death of such creditor or debtor, shall be allowed for the commencement of any such action or suit. The object and effect of each act is, to prevent the institution of suits in certain cases after a time, limited by the wisdom of the legislature, shall have elapsed. In the operative words of the two principal clauses which have been cited, there is little other distinction than the difference of time allowed for bringing the action. It will not be contended that a longer, or a shorter time, makes the act more or less an act of limitations. The leading and important distinction between *the two laws is, that the first must be pleaded, whereas the second is to be noticed by the Court and jury, although the defendant should not seek to avail himself of-it.
    The latter law does not, for this reason, cease to be an act of limitations. If a similar clause had been introduced into the first law, it would have been an act of limitations, notwithstanding. That clause does not affect the right of action : it only relates to the manner in which the, subject, to be decided on, is to be brought before the Court; but the decision of the Court will be the same, in the one case as in the other. In a cause, depending on the latter law, which comes before the Court without pleading the act, the Court must decide precisely in the same manner as it would decide the same case brought before it by pleading, if the act had required that it should be pleaded. This clause in the act, therefore, does not change its character, or make it less an act of limitations. If it be, in essence, an act of limitations, then it will be admitted that the fresh assumpsit rescues this case from the operation of the act, as the suit was brought immediately after the new assumpsit was made: But, whatever may be the opinion of the Court on this point, the action is clearly maintainable on other ground.
    The suit is instituted, not on the contract raised by the deliver of the goods, but on a new contract, for which the delivery of the goods was a sufficient consideration.
    Although the declaration is in the usual form, yet the assumpsit laid in it, may be considered, either as an implied, or an actual assumpsit. Upon demurrer to the declaration, or after a general verdict, it would be considered as founded on an express assumpsit, if it was necessary so to consider it, in order to support it: Therefore, a fortiori, the declaration, in this case, where the verdict *shews a special assumpsit, will be considered as charging that special assumpsit. The suit, then, being instituted, not on the delivery of the goods, but on a subsequent agreement to pay for them; the only question is, w’hether the consideration, on which that agreement was made, be sufficient to support it?
    A moral obligation to do a thing, is a sufficient consideration for an assumpsit. Bull. N. P. 147.
    Can a stronger moral obligation exist, than to pay for property purchased?
    No clause in the act does, or can destroy this moral obligation ; nor does an3r clause make it an unfit consideration for a new contract. The act designed to prevent the inconsiderate incurment of debt, by taking up goods without enquirj'; not to disable the individual from making a contract upon a conscientious consideration. The act goes no further than to absolve the debtor from the legal obligation created by the original purchaser of the goods: It does not disable him from making a subsequent contract concerning them. Cases innumerable might be adduced, where a promise will bind a man to do that, which he was not bound by law to do before the promise was made. Money advanced to a son, without request on the part of the father, is yet a sufficient consideration to give validity to a promise of the father to re-pay it. A debt barred by the act of limitations, is a sufficient consideration for an assumpsit: A bankrupt, whose legal discharge is as complete as it would have been had he never owed a shilling, will yet be bound by his promise, made after the bankruptcy, to pay a debt contracted before it.
    J. Taylor, for the defendant.
    The only question is, whether this as-sumpsit revives the claim, as in cases, under the act of limitations? It cannot revive the claim in like manner, because the two acts are totally dissimilar.
    *They differ, 1. In title. 2. In the motives which induced their passage. 3. In expression. 4. In the mode of being carried into effect.
    1. The title of the first is “an act for limitations of actions and avoiding of suits.”
    The title of the second is “an act for discouraging extensive credits, and repealing the act prescribing the method of proving book debts.”
    . 2. The object of the first act is to prevent the bringing of suits, when time had devoured the defence. The object of the second is to prevent extensive credit.
    In the first case, a fresh promise does away the mischief. In the second, a fresh promise does not diminish it. The act will have made an immaterial change in the nature of the evidence required, without affording in any degree, a remedy for the evil designed to be removed.
    3. The expressions vary essentially. What is this suit founded upon? Is it not on goods, wares and merchandize sold and delivered? The act proceeds further, and says, “for any articles charged in any store account.” This is a suit brought for articles in a store account, which articles form the consideration of the promise.
    The act of limitations goes to the promise: This to the consideration of the promise. There is a difference, too, shewn by the exception in favor of executors and administrators, proving that, in the contemplation of the Legislature, the act embraced every case not excepted. The penalty, for post-dating the items of the account, shews, likewise, the intention of the Legislature to reach the cause of the action: So too, the expelling from the account every article not delivered within six months.
    4. The laws differ in their mode of execution. The act of limitations must be pleaded: This act *need not be pleaded. The act of limitations does not destroy the debt, but may, or may not, bar its recovery: This act destroys the debt itself; and, therefore, need not be pleaded.
    The object of the act would be defeated, if the plaintiff may elude it by proving a special promise. When must this promise be made? Suppose, a day after the delivery of the goods, promise of payment be made: If a suit be maintainable on it, the act will be of no avail, as it would be no discouragement to extensive credit. 'Such promises might always be obtained. The purchaser would never fail to give them on the delivery of the goods. No person purchasing goods would, if asked whether he would pay for them, answer otherwise, than in the affirmative. This might be proved as readily as the delivery of the goods; and the act would be forever evaded. Casual inadvertent expressions would not fail to be seized on, as assumpsits, on which to found the suits.
    
      
       Statute of Limitations — Construction—Store Account. — The principal case is cited in Tomlin v. Kelly, 1 Wash. 192, and Wortham v. Smith, 15 Gratt. 492, 493, for the proposition that, the statute of October 1779, “for discouraging extensive credit, and re, pealing the law prescribing the method of proving book debts," applies only to the store accounts of retail dealers.
      Same — Same—Express Promise. — The principal case is further cited in Wortham v. Smith, 15 Gratt. 492, for the proposition that, the above-mentioned statute of 1779, applied only when it was necessary for the plaintiff to produce and rely oh his account, and that it had no application to the case of an express promise by the defendant to pay the amount of a store account, upon which a suit might be maintained without the account. To this point, the principal case is cited in Radford v. Fowlkes, 85 Va. 852, 8 S. E. Rep. 817; 4 Min. Inst. (4th Ed.) pp. 612, 801.
      
        Same — Same—Saving- Section oí Statute. — In Moore v. Mauro, 4 Rand. 488, the court said that, the saving in the 4th section of the act of limitations (1 Rev. Code 488) applies to the 7th section of the same act; by which, an action between merchant and merchant is neither barred by one year, nor five years. In Wortham v. Smith, 15 Gratt. 495, the court said the same construction was given in the principal case, and Tomlin v. Kelly (1 Wash. 192), to the like saving in the act of 1779.
      Same — Action on Open Account against Representative. — The act of 1792, makes it the duty of the court “in an action upon an open account against an executor or administrator, to cause to be expunged from such account all items appearing to have been due live years before the death of the testator or intestate.” See Hoskins v. Wright, 1 Hen. & M. 378.
    
    
      
      Same — Same — Construction — New Promise.— But this act relates only to open accounts, and does not extend to exclude evidence of settlements or assumptions by testators within the time limited by the act. Fisher v. Duncan, 1 Hen. & M. 574; Brooke v. Shelly. 4 Hen. & M. 266.
      
      Same — Same—Same—Principal Case. — In Brooke v. Shelly, 4 Hen. & M. 269, Judge Roane, in construing this act, refers to the decision in the principal case thus: “The grounds of that decision seem fully to apply to this case, and to narrow the application of the act to cases depending upon the account, as exhibited, only, and do not interdict proof of settlements or assumptions of the debt within time prescribed by the act.” The principal case is cited to this point by Judge Tucker, on p. 268 of Brooke v. Shelly, supra.
      
    
   The President

delivered the opinion of the Court.

The act prescribing the method of proving book debts, passed in 1748, [c. 25, 6 Stat. Larg. 53], and repealed by the act of 1779, will aid the Court in the construction of the latter act., The act of 1748 begins by explaining the cases to which it applies, to wit, “all actions founded on emisset, &c.” If, in such a case, the plaintiff could support his action without his book, that act would have no application to it. But, if he could swear that the matter in dispute was a store account, and that he had no means to prove the delivery of the articles therein contained, or any of them, but by his store-book, in that case the book, or a copy of the account, might be given in evidence. Thus was a store account admitted; and this forms the subject, of the act of 1779. There were two evils tobe removed by that act. The first, the act of 1748, which was to be repealed: The second, extensive credit, which was to be prevented. The*first evil was cured by repealing the law: See, then, the means which were used to cure the second.

The act of 1748 brings the account into Court, as necessary to support the action; and the act of 1779 supposes it there. What are the words? ‘ ‘All suits founded on account for goods, wares and merchandize sold and delivered, or for any articles charged in any store account.” What is a suit founded on an account? Is it a suit on simple contract in opposition to bonds? Or is the suit properly founded on an account, according to the true meaning of the act, when the plaintiff cannot support it without producing his account, which when produced appears to be a store account? The latter seems to be the just construction : And this construction establishes the distinction between an express and implied promise. In the one case, the account must be produced, and the law will operate upon it; in the other, the suit is maintainable without the account. The subsequent parts of the law support this exposition. The penalty for post-dating an article, and the clause for rejecting such articles as shall have been delivered more than six months, suppose the account before the Court.

It is objected that this construction would defeat the law; as merchants would on all occasions, bring in witnesses to prove as-sumpsits. If the proof be untrue, every case, as well as this, must be subject to the inconvenience: If true, where is the mischief? It is said the act will be evaded. But the act relates only to suits upon the account; and not more to actions on a special contract, than to those on a bond, where the germ is a store account. The special verdict shews the case to have been one comprehended in the act of 1779; and the question of law referred to the court is, Whether, after the action has been barred on the account, it may be maintained on a special promise? The case of a bankrupt is extremely apposite. *He is as completely discharged by law as was the purchaser in this case: But if, though so discharged, he yet thinks him-, self under a moral obligation to pay a debt, that moral obligation supports the promise. So in this case, a promise, in consideration of the moral obligation, will support the action, it not being necessary to bring the account before the court. We are therefore of opinion that it is to be certified that the law upon the verdict is for the plaintiff.  