
    Henderson and Others v. Foote’s Ex’rs.
    [Friday, October 29, 1802.]
    Assumpsit — Limitations—To WhatTime Relates. — To what period the plea of non assumpsit, within five years, relates; whether to the time of the suit, or to that of pleading- the plea.
    Same — Loose Conversation of Executor — Effect.— Loose conversations of an executor are not sufficient to raise an assumpsit.
    Same— Same —Same—Case at Bar. — The Court thought it unnecessary, in this case, to decide whether a declaration, founded on an assumpsit by the testator, could be supported by evidence of an assumpsit by the executor; because, the conversation of the executor was too loose, to raise an assumpsit.
    Glassford and Henderson brought as-sumpsit against Fitzhugh and wife, ex’rs of Foote, and declared. 1. For goods, wares and merchandizes sold and delivered to Foote. 2. On a quantum valebat for the same. 3. For money paid and advanced for Foote. 4. For money had and received. Plea, non assumpsit, and non assumpsit within five years; issue. Upon the trial of the cause, the defendant filed a demurrer to the evidence, which states: That the plaintiff, in order to maintain the 1st, and 2d count, gave in evidence, that Fitzhugh had understood there was a considerable debt, of between two and three hundred pounds, due from Foote to the plaintiffs; and, that at the time when Foote made his will, there was some conversation about the quantum of legacies to be given his daughters; and Mrs. Foote observed there was very little due, except a British debt, but the witness did not understand that Fitzhugh was present, at the making of the will. That Fitz-hugh said, the reason why he had not given up some of the slaves, was, that he held them until it was determined, whether the said debt was to be paid; that he believed it to be just; that he had found the account in the house; and was willing to pay his own part of it, but the legatees, who were sanguine that the plaintiffs could not obtain judgment, were determined to take every advantage; and, that Foote died about the year 1778. The jury found a verdict, subject to the opinion of the Court upon the demurrer; and the *Court gave judgment for the plaintiffs. Whereupon the defendants appealed to the District Court, where the judgment was reversed; and, from the judgment of reversal, the plaintiffs appealed to this Court.
    Botts, for the appellant.
    The issue was immaterial. For, the plea is non assumpsit generally, and not that the defendant did not assume at anjr time within five years, next before the institution of the suit; so, that the plea relates to the time of pleading. But, although the defendant might not have assumed within five years before the time of pleading, yet he might have assumed within five years, next before the commencement of the suit. Of course, it was immaterial, whether he had assumed within five years next before the time of pleading, or not; for, it did not embrace the essential question in the cause. Smith v. "Walker, 1 Wash. 13S. It follows, therefore, that a repleader ought to have been awarded; and, that the judgment is erroneous, in having omitted to order it.
    But, upon the merits also, the judgment is erroneous. It is a rule, that the slightest assumpsit will be sufficient to take a case out of the operation of the statute of limitations; And, as the executrix might have assumed herself, her husband might do it for her. In fact he did; at least a jury might have inferred it from his conversations: And then the demurrer to evidence admits it; because, a demurrer to evidence admits every fact, which the jury might have inferred. Besides, slighter evidence will be sufficient to revive a promise, after the five years, than is necessary to prove the original promise. Thus, if an executor publishes in the newspapers, for creditors to make known their debts, and receive payment, it will be construed into an as-sumpsit, which will revive the promise.
    ^Randolph, contra.
    The general plea will refer to the commencement of the suit; and, therefore, the true question is covered by it. The plaintiff has not any proved express assumpsit. The husband did not mean to bind himself, or the estate, in the casual conversation stated in the record. He merely said, that he had understood there was a balance due. But, this was a loose declaration, uttered several years after the testator’s death, and not made to the creditor himself. Therefore, it was not obligatory. Taliaferro v. Robb et al., 2 Call 258. The evidence, however, was irrelevant; for, the promise is laid in the declaration, to have been made by the testator, and this is attempted to be supported, by evidence of a promise byT the husband of the executrix. So, that the al-legata and probata do not agree together.
    Botts, in reply.
    The case of Smith v. Walker is express, that the general plea will not do; and, therefore, the issue is immaterial. It is no objection that the promise is laid to have been made by the testator; for, the evidence was, nevertheless, admissible; and bound the estate. 1 Morg. Fss. 340.
    Cur. adv. vult.
    
      
      Pleading — Statute of Limitations — To What Time Applies. — Upon the question as to what period the plea of the statute of limitations relates, the time of the suit or that of pleading the plea, the principal case is cited in Rice v. White, 4 Leigh 481; Austin v. Jones, Gilmer 354. See also, Smith v. Walker, 1 Wash. 135.
    
    
      
      Same — Assumpsit—Loose Expressions of Executor— Effect. — Loose expressions of an executor are not sufficient to raise an assumpsit. For this proposition the principal case is cited in Lewis v. Bacon, 3 Hen. & M. 105. See also, Quarles v. Littlepage, 2 Hen. & M. 401; Fisher v. Duncan, 1 Hen. & M. 563.
    
    
      
       Same — Repieader—When Will Not Be Awarded..—In Bonsack v. Roanoke County, 75 Va. 592, it is.said: “It was held by this court at an early day, that although the issue may be immaterial, a repleader will not be awarded if it appear from the record that if the plea had been properly pleaded the decision of the issue must have been the same. Henderson v. Foote, 3 Call 248." See also, citing the principal case, Gray v. Kemp, 88 Va. 203, 16 S. E. Rep. 225.
    
   PHNDIvFTON, President,

delivered the resolution of the Court as follows:

In June, 1796, the appellants, as surviving partners of Glassford & Co., commenced an action on the case against John Fitz-hugh and Margaret his wife, as executors of Richard Foote, in the County Court of Prince William. The declaration contains four counts: 1. An indebitatus assumpsit for goods sold and delivered to the testator, by John Riddle, factor for the plaintiff. 2. A quantum valebat for the same. 3. For money advanced. 4. For money had and received to the use of the plaintiffs. All the promises being laid *to be made by the testator: the defendants pleaded'non assumpsit; and non assumpsit within five years: On which the parties were at issue. Upon the trial of the cause, the plaintiffs, in order to prove the 2d issue, gave in evidence, “that John Fitzhugh, the defendant, frequently said, in the year 1792, and since, that he understood, there was a considerable debt, of between two and three hundred pounds due from Foote’s estate, to the plaintiffs; that he had understood also, that when Foote made his will, on a conversation between him and others about the quantum of legacies to be given to his daughters, Mrs. Foote his then wife, observed there was very little due, except a' British debt: That Fitzhugh also said, that he held some of the slaves of Foote’s estate, until it was determined, whether this debt was to be paid: That he believed the debt to be just, and he found the account in the house, and was willing to pay his part of it: That the legatees and sons of Foote were determined to take every advantage, and were sanguine in their expectations that the plaintiffs could not recover; and it is stated, that Richard Foote died about the year 1778.” The defendants demurred to this evidence, as insufficient to maintain the second issue, on the part of the plaintiffs; the plaintiffs joined in demurrer; and the jury found a provisional verdict for the plaintiffs, for 3691. 17s. lOd. subject to the opinion of the Court, upon the demurrer. The Count3r Court gave judgment for the plaintiffs, and the defendants appealed to the District Court, where the judgment was reversed: Whereupon, the plaintiffs appealed to this Court. It was insisted, by the appellants’ counsel, that the issue joined upon the second plea, was an immaterial one, since non assumpsit within five years might apply to the time of the plea, which might be true, and yet he might have assumed within five years before the commencement of the suit, the true enquiry upon the issue; and the opinion of the Court, in the case *of Smith v. Walker, 1 Wash. 135, was relied on. In that case (a complication of errors) the Court did say, that strict^ the non assumpsit within five years must refer to the time of the plea. The inference drawn from it, is not mentioned, nor is it further taken notice of; however, the conclusion now drawn, we think would be right, if there was nothing in the record to shew, that, if it had been properly pleaded, the decision of the issue must have been the same: But, it being stated, that Foote died in 1778, eighteen years before the suit was brought, it was impossible that he could have promised within the last five j’ears, of those eighteen, unless he had come from the grave to make such promise. On this head, therefore, the issue was materially determined. It was objected by the appellees’ counsel, that the promise of Fitz-hugh, if binding, ought to have been declared on, and could not have been given in evidence: To repel which, the appellants’ counsel relied on 1 Morgan’s Essays, 340, as proving that, upon a declaration laying a promise made to a testator, the plaintiff may give in evidence a promise made to the executor within time. -Without considering this, which is contradicted in other books, or whether there may not be a difference in such a case between a promise made to and one made by an executor, which the Court think unnecessary to decide, we are of opinion that, in this case, the loose conversation of Fitzhugh, even if he had been the executor instead of being only the husband of the executrix, would not have operated either as a new promise, or as an acknowledgment, so as to revive the debt. It is plain, from the whole evidence, that he did not intend it should have any such force; since, at the time he said he believed the debt to be just, and that he was willing to pay his part, he declared that the others concerned were determined to dispute it, and, that he held slaves in his hands until it was determined, whether the debt was to be paid.

*We are, therefore, of opinion, that the District Court did not err in their judgment, so far as it went: yet we are obliged to reverse it, because it-was incomplete in not entering such a one as the County Court ought to' have given. It is, therefore, reversed with costs, and a perfect judgment, such as there should have been, is to be entered; that is to say, that the judgment of the County Court is erroneous and reversed with costs, and judgment entered for the defendants.  