
    John Williams and Another, Plaintiffs in Error, versus Merab Root.
    Under the provision of the statute of 1783, c. 42, § 7, a defendant, m an action before a justice of the peace, may avail himself of the statute of limitations under the general issue; the words “justification or excuse ” in the statute meaning eveiy matter which may bar the plaintiff’s right to recover, whether requiring a special plea by the common law or not.
    The writ of error in this case was brought to reverse a judgment of the Circuit Court of Common Pleas for this county, in an action of assumpsit for goods sold and delivered, originally commenced and tried before a justice of the peace, and brought to that court by appeal; the plaintiffs in error having been original plaintiffs and the said Root original defendant.
    The errors assigned were, that the court permitted the defendant to avail herself of the' statute of limitations, under the general issue of non-assumpsit; that the plaintiffs at the trial moved the court to allow them to give in evidence that, at a short time previous to the expiration of six years»next following the sale and delivery of the said goods and merchandise, they notified the said Merab of their said claims, and requested her to pay the same; but she did not agree to do it; which motion was overruled by the said court; and that the said court instructed the jury that, without proof on the part of the plaintiffs that the said Merab had promised the plaintiffs to pay them the demand stated in their declaration within six years previous to the commencement of their action, the statute aforesaid * was sufficient to bar them from recovering in their said action. ■
    
      Gold, for the plaintiffs
    in error, was- aware that, by the statute describing the power of justices of the peace in civil actions,  it is provided that in all such actions, with one only exception, not applicable to the present case, “ the defendant shall be entitled to all evidence under the general issue, which by law he might avail himself of under any special plea in excuse or justification.”
    But he argued that the statute of limitations was not matter of excuse or justification, which must relate exclusively to actions for a tort. If the legislature had intended that defendants were in no case to be held to plead specially, the clause cited would have ended with the words special plea.
    
    A provision to the same effect, and quite as general in its expressions, is made by-the Stat. 1783, c. 38, <§> 9, in favor of executors, administrators, and guardians ; yet, in the case of Foster vs. Abbot, Adm. 
       the court said that the statute extended to such facts only as went to the merits of the action, but not to statute bars; and instanced the statute of limitations, which, they say, “ must always be pleaded, and is never given in evidence under the general issue.”
    The question, whether the evidence offered by the plaintiffs was sufficient to take the case out of the statute, should have been referred to the jury.  Although the fact stated and offered in evidence may appear of very little weight, it might have satisfied the jury ; and it is well known that very trivial circumstances have been held sufficient to prevent the operation of the statute of limitations.
    
      Jarvis for the defendant in error.
    
      
      
        Stat. 1783, c 42, § 7.
    
    
      
       1 Mass. Rep. 234.
    
    
      
      
        Esp. Dig. 152. — 2 D. & E. 760, Lloyd vs. Maund. — 4 East, 599, Bryan vs Horseman. — Ibid. 604, in notis, Rucker vs. Hannay.
      
    
   By the Court.

The Common Pleas very properly allowed the statute to be given in evidence under the general issue. The action was commenced before a justice of the peace ; and the construction of the provision in the statute describing the powers of justices, cited in the argument, and the practice under it, has uniformly been to admit every thing, not matter in * abatement merely, to be given in evidence. The words justification or excuse in that act mean every matter which may bar the plaintiff’s right to recover, whether requiring a special plea by the common law or not.

The evidence offered by the plaintiffs in the case before us, with a view to take it out of the statute, viz., that they made a demand to which the defendant would not agree, certainly had no tendency to produce the effect, and was therefore properly rejected by the court.

Judgment affirmed.  