
    Hunter vs. Starkes.
    «Under a general replication to the statute of limitations, evidence of an admission of an existing debt, or of an express promise to pay the debt, which had been barred by the statute, is admissible.
    This is an action of assumpsit, which was instituted in the circuit court of Hardeman county, by Hunter against Starkes, in October 1844, for boarding, servants hire, &c. &c.
    The defendant pleaded non-assumpsit and the statute of ‘limitations. To the plea of the statute of limitations, the plaintiff filed a general replication. It appeared in evidence, that the debt for boarding, servants hire, &c. &c., arose from January to July, 1841, The plaintiff introduced evidence of the admission of the defendant, to wit, that he would pay the debt if he was able, made within three years next before the bringing of the suit. The judge (King) charged the jury as follows:
    “The substance of the defendant’s second plea is, “that the cause of action did not accrue within three years next before the commencement of this suit.” To which the plaintiff replies, “that the cause of action did accrue within three years next before bringing his suit.” If it appear that the promise of the defendant to pay the debt was conditional, that is, that he would pay it when able, his ability to pay must be shown before the plaintiff can maintain Kis action. And so in regard to the state of the pleadings, it must be shown that the boarding, servants hire, &c., were furnished by the plaintiff to the defendant within three years next before bringing this suit, otherwise he can recover only for the services rendered within that time. If the plaintiff relied upon the new promise to take the case out of the statute, he should have replied it, and not “that the cause of action accrued within three years.” It is clear that the new promise is that which takes the case out of the statute; a new promise is but a new contract, a contract to pay upon a pre-existing consideration, which he is not legally bound to pay but for the new promise, upon which the plaintiff should have declared; at least he should have replied the new promise to the defendant’s plea of the statute of limitations, and such a replication would not have been a departure in pleadings.”
    There-was a verdict, and judgment for plaintiff. The plaintiff not being satisfied with the verdict, moved the court for a new trial. .This motion was overruled, and the plaintiff appealed.
    McDowell, for the plaintiff.
    
      H. A. Barry, for the defendant.
   Turley, J.

delivered the opinion of the court.

This is an action of assumpsit, to which the defendant pleads the statute of limitations; to which the plaintiff replies generally, controverting the truth of the plea, and concluding to the country. The circuit judge, upon the trial, held that the replication should have been special, setting forth a new promise made within time not barred by the statute of limitations. In this, we think, he most certainly erred. It is not necessary that there should be a new* promise to take a case out of the operation of the statute of limitations. An admission that the amount claimed by the contract has never been paid, is as sufficient for that purpose as is a direct promisé to páy, and, therefore, upon a plea of the,statute of limitations, upon a general replication, proof'may be heard, to show that the nonpayment of the debt, and the consequent existence of it has been admitted within the time; and so also may proof of a subsequent promise, for either, revives the action, and it is the remedy which is barred and not the cause of action, that is, time does not annuli the contract, but bars an action on it; the consequence of which is, that a direct admission of the existence of the debt, or a-promise to pay it within time, revives the action, as we have invariably held.

In 1st Chitty’s pleading, 179, it is laid down, that “if the statute of limitations be pleaded, the plaintiff may reply, either that the defendant did undertake, or that the cause of action did arise within six years, or with the negative of the plea;” and of course, under this replication, any thing may be given in evidence which shows that the defendant did undertake, or that the cause of action did arise, within the time limited by law.

We, therefore, reverse the judgment of the circuit judge, and remand the case for a new trial.  