
    Hall vers. Miller.
    Evidence of a Sale upon a Credit will support a Declaration upon a Promise to pay on Demand, where the Time of the Promise is laid after the Expiration of the Credit.
    THE Plaintiff brought Assumpsit to pay on Demand, upon Account annexed,  and gave in Evidence his Book, in which was a Memorandum of an Agreement made at the Day of Sale, that Months Credit was given the Defendant. The Time alledged in the Declaration, of the Defendant’s being indebted, was, after a Lapse of the Months Credit. Now, the Question was, whether this Evidence supported the Declaration.
    
      1767.
    
      Mr. Auchmuty
    
    urged, that this Evidence proved a
    different Contract from that all edged by the Plaintiff ; for he declares upon a Promise to pay upon Demand, and brings in Evidence that the Contract was not to pay on Demand, but that a long Credit was given : And, though the Promise is not all edged to be upon Demand, till after the Time of Credit was elapsed, yet, that can never alter the Nature of the original Agreement. There never was a Promise to pay upon Demand, if we believe the Plaintiff’s own Book; and the Proof varying from the Allegation, the Plaintiff must, in this Action, fail.
    
      
       The sufficiency of the common form of declaration in assumpsit, upon account annexed, was queftioned in the case of Rider v. Robbins, 13 Mass. 284, and it was there held to reft on immemorial practice. See 2 Mass. 398 ; alfo Dummer’s Defence of the New England Charters, (ed. 1745,) 20, where a description is given of the early practice in the courts of law.— “ If it be Matter of Account, the Account is annexed to the Writ, and Copies of both left with the Defendant.”
    
   But it was answered, and Resolved by the whole Court, (unanimously) that the Promise to pay on Demand being laid after the Time of Credit was elapsed, was well supported by this Evidence; for, the Defendant having neglected Payment at the Time limited, after that Time past, the Law raises a Promise to pay on Demand, and the Plaintiff may then well declare so. And the Court relied on Gilbert’s Law of Evid. 191, where “one brought “ Assumpsit for £20, and gave in Evidence a Promise that if two would surrender their Right, he “ would pay them £20 apiece, and that they did “ surrender their Right, this is good Evidence to “ support the Declaration; for the Promise is laid “absolutely in the Declaration, and the Promise in “ Proof is upon Condition, yet, when that Condition is performed, the Duty becomes absolute, and “ so is good Proof upon this Declaration.”  