
    Bradley vs. Field.
    gainst which Mitation^had run on its be-to^him’for pay! the” note1 had been paid in formed3 for Pthe payee; that were noTdone to apply on the as’a running account be-the payee, and he intended the amount should be set off against the note or against the payee, and duee^his count, but at a day AUZ™tii’t WUS declarations did not amount sion of a subsistmg mdebt. edness, without which a notbcimpbed1 Where the ma. kerofa notea-
    A discharge abolishing imprisonment for cases’,11 maybe given in evidence under a plea of the general issue; and a variance between the discharge pleaded and that produced on the trial will not prevent the party from offering the discharge' in evidetice.
    Error from the Saratoga common pleas. Field sued Bradley before a justice of the peace, and declared on a promissory note given by the defendant to the plaintiff for the sum of $14,26, dated May 8,1816. The defendant pleaded the general issue, the statute of limitations, and a disc^arge un^er the act abolishing imprisonment for debt, granted in September, one thousand eight hundred and twenty one, hy James McCrea, Esq. a judge, &c. The plaintiff replied a new promise within six years, denied the granting of the discharge, and alleged fraud in the obtaining of it. The cause was tried before the justice in September, 1827, who Tender-ed judgment for the plaintiff. The defendant appealed,
    On the trial of the cause in the common pleas, the plaintiff proved that in August, 1827, his agent presented the note jn qUestion for payment to Bradley, who said that it had been . , , , ,, , paid; the agent asked how he had paid it; he answered, in services done for Fie]d. On being asked if the services ° were done to apply on the note, he answered no ; there was a running account between him and Field, and he intended the amount should be set off against the note or against Field, agent suggested to him the propriety of bringing his accounttot^e justice’s office, and have it applied on the note, The defendant agreed to do so. At a subsequent day, being asked whether he had brought down his account, he answered that it was burnt. On this evidence, the defendant move¿ for a nonsuit, -which was denied. The defendant excepted.
    The defendant then offered in evidence a discharge under the act abolishing imprisonment • for debt in certain cases, granted to him by James McCrea, Esq. a judge of the Sara-toga common pleas, bearing date in September, one thousand eight hundred and twenty; which was objected to on the ground of variance between the discharge pleaded, and that ° offered to be given in evidence. The court refused to receive the discharge. The defendant also excepted to this decision. After some further proof being given, the jury found a verdict for the plaintiff for $24,23, on 'which a judgment was entered, and to reverse which judgment a writ of error was sued out.
    /. Ellsworth, for plaintiff in error.
    
      W. L. F. Warren, for defendant.
   By the Court,

Savage, Ch. J.

Two questions are presented by the bill of exceptions; 1. Whether enough was shewn to take the case out of the statute of limitations; 2. Whether the defendant’s discharge should not have been received.

On the first point there are many contradictory decisions. I consider the law correctly stated by Spencer, justice, in Sands v. Gelston, (15 Johns. R. 520.) “ If, at the time of the acknowledgment of the existence of the debt, such acknowledgment is qualified in a way to repel the presumption of a promise to pay, then it will not be evidence of a promise sufficient to revive the debt and take it out of the statute.” And again, in conclusion, he says, though the defendant admits the debt has never been paid, if he protests against his liability, it would be an outrage on common sense to infer a promise to pay in the face of his denial of his liability.” The same doctrine is found in 11 Wheaton, 309, and 1 Peters, 362. In my opinion, therefore, the court erred in inferring a promise. When the defendant said he had paid the note by a running account for his labor, he clearly did not intend to admit a subsisting indebtedness, which is necessary to imply a promise.

On the other point I think the court were in error also. The defendant was entitled to give his discharge in evidence on the general issue. His mistake in describing it when it was superfluous to plead it, ought not to prejudice him. There was no more surprise on the plaintiff than if he had pleaded the general issue only. The judgment must be reversed, and a venire de novo awarded to Saratoga common pleas.  