
    Hamilton Thornton vs. John H. Crisp.
    In an action by C. against T. on a medical bill, the plea of the statute of limitations was filed ; and W. proved that, within the period of limitation, C. gave him an order on T. for seventy dollars, the amount of a medical bill; he presented the order in a few days afterwards, when the defendant said, “ that he thought the bill was high ; he had not the money to pay it at the time ; and he would see C. himself and settle : ” held, that the proof was not sufficient to take the case out of that clause of the statute of 1844, which provided that “ No promise should revive any cause of action, unless the same be in writing and signed by the party to be charged thereby, or unless it be proved that the very claim sued on was presented and acknowledged to be due and unpaid.”
    On appeal from the circuit court of Marshall county; Hon, Hugh R. Miller, judge.
    'On the 11th day of July, 1848, John H. Crisp sued Hamilton Thornton, in assumpsit, on a medical bill for $75, contracted Sept. 7, 1844. Non assumpsit, and the statute of limitations of three years were pleaded.
    On the trial, Weatherby, a witness, proved, — “About the close of the year 1845, or the commencement of 1846, Dr. John H. Crisp, (the appellee,) gave me an order on Mr. Hamilton Thornton (the appellant) for about $70, the amount of a medical bill which said Crisp had against Thornton. I accordingly presented the order in a few days after its reception, and Mr.’ Thornton said that he thought the bill was high, and that he had not the money to pay it at that time, and that he would see Crisp himself and settle. According to the best of my belief, the order merely specified the amount to be paid, without saying for what it was due; but my understanding from both the parties was, that the amount due, was for medical services. Defendant did not expressly promise to pay the account.”
    This was all the proof offered to take the case out of the statute; it is not necessary to state the proof of the account.
    
      The court charged the jury, “That it was not necessary for the plaintiff to prove that the very account sued on had been presented to defendant; to take the case out of the statute, it ■was enough for the jury to believe, from the evidence, that within three years before the institution of suit, the very claim sued on was presented to defendant, and he acknowledged it to be due and unpaid.”
    It also charged, that “The plaintiff, to take the case out of the statute, must prove that the claim presented to the defendant was such an one as to show upon its face, that it was the very claim sued on.”
    The jury found for plaintiff, and the court below refusing to grant a new trial, defendant appealed.
    
      J. W. Clapp, for appellant,
    In an elaborate argument, cited and reviewed 2 Show. 126; 1 Ld. Raym. 389, 421; 2 lb. 1101; 1 Salk. 28,29; 2 Cowp. 548; 5 Burr. 2630; Rowcroft v. Lomas, 4 Maulé & S. 458; Hellings v. Shaw, 7 Taunt. 608; 8 Cranch, 72; 3 Cond. Rep. 121; Wetzell v. Bussard, 11 Wheat. 309; 6 Cond. Rep. 325 ; Bell v. Morrison, 1 Pet. 351; Moore v. Bank of Columbia, 6 Pet. 86 ; 11 Johns. 146 ; 13 lb. 288 ; 15 lb. 311; 6 Johns. Ch. R. 289; 2 Pick. 368 ; 9 Leigh, 48 ; 4 Port. 224; Mart. & Yerg. 272’; 7 Yerg. 541; 9 lb. 454; Davidson v. Morris, 5 S. & M. 564; Hard. 301; 1 Bibb, 443.
    
      Watson and Craft, for appellee,
    Cited Helm v. Smith, 2 S. & M. 403; 8 Wend. 600; 15 lb. 284, 302; Ann. U. S. Dig. 355, § 79; they also reviewed some of the decisions cited on the other side.
   Mr. Justice Clayton

delivered the opinion of the court.

This case involves the construction of the Act of Limitations of 1844, which provides, “ That no promise shall revive any cause of action, unless the same be in writing, and signed by the party to be charged thereby, or unless it be proved that the very claim sued on, was presented and acknowledged to be due and unpaid.” Hutch. Code, 832.

The evidence relied on in this instance to take the case out of the statute, was that of James Weatherby, who states “ That in 1845 or 1846, Dr. Crisp gave him an order on the defendant for about $70, the amount of a medical bill. The order was presented in a few days afterwards, when the defendant said, that he thought the bill was high, and that he had not the money to pay it at the time, and that he would see Crisp himself and settle.”

A verdict and judgment were rendered for the plaintiff in the court below.

It is very manifest that the evidence in this case does not come up to the requisitions of the statute. There is no promise in writing, and “ the claim sued on,” a medical account, was not presented to the defendant. The order was an entirely different thing. The court has no power to ingraft exceptions upon the provisions of the statute.

The judgment is reversed, and new trial awarded.  