
    The Administrators of M‘Dowell against The Executors of Goodwyn.
    thDSt*meruS/rtS promise; and so pJomiseffiopay tSgency”forCth¡ statute is not sus?oñt1^en°yhap? pswiierepiamt¡it replies an original Su|ts^!owait to S bupnto°t!íé time of the trial.
    This case was tried before Mr. Justice Johnson, at Columbia, at the last November and was an action of assumpsit, to which the ge_ . _ 4 neral issue, the statute of limitations, (actio non accrevit infra quatuor amos,) was pleaded; to which . 4 x 4 there were appropriate replications, and, among others, an original sued out within four years # J alter the cause of action accrued. The evidence relied upon to take the case out of the statute, was a letter written by defendants’ testator, dated 8th February, 1809, in which he speaks of the present demand as a debt then due, and promises to pay as soon as he shall sell his crops of 1807 and 1808, which were then on hand; but the original writ in this case was not lodged in the Sheriff’s office until the 29th of March, 1814, being five years, one month, and twenty-one days after the date of this letter; and in support of an original, sued out within four years after the cause of action, the plaintiffs produced an original writ, entered in the Sheriff’s office, between the same parties, in assumpsit, on the 26th of February, 1812, on which the plaintiffs declared for the present cause of action, and likewise for other demands, in which he had a verdict for the whole, except the demand for which the present action was brought, on which a final judgment was entered.
    In the consideration of this case, two questions arose:
    1st. Whether the statute began to run from the date of the letter of 8th February, 1809, in which there was a promise to pay, when the crop of the defendants’ testator, of 1807 and 1808, should be sold; or from the sale of these crops, of which there was no evidence, nor was there any offered ?
    2d. Whether the replication of an original, sued out, was supported by the production of a record between the same parties, and for the same cause of action, in which there was a final judgment for the plaintiff^ without showing a continuance of that original up to the present time, and which did not in fact exist ?
    Being of opinion with the defendant on both these points, the plaintiff was nonsuited, and a motion is now made to set that nonsuit aside.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

1st. Where a promise is made indefinitely, without fixing on any time for the payment, the statute of limitations begins to run instantly; and it appears equally clear, that when a promise is to pay on the event of a contingency, the consummation of which depends wholly on the promiser, it also commences from the date of the promise, because he can defeat it at his will, or it might be defeated by accident; as in this case, the defendant’s testator might not have sold his crops for twenty years, or it might have been lost in transportation to market: and if he is to be bound by this promise, all the purposes of the statute would be wholly defeated; and if the doctrine contended for was to be established, I should not be astonished that we should directly see all contracts of this nature made to depend upon a contingency that could not possibly happen; and by this means the statute of limitations, heretofore held so sacred, would remain a dead letter in our statute book. In any event, however, it appears to me, that even admitting the plaintiff’s intestate might have considered this as a promise to pay in future, no presumption could have extended it to a year, a month, and twenty days, beyond the date of the letter relied upon as the evidence of an undertaking to pay.

2d. The rule is clear, that to support the replication of an original, sued out within four years after the cause of action given or accrued, the plaintiff must show a continuance of that action up to the time of the trial, to show that an action of the same, or a similar nature, was instituted between the parties, will not support (Buller's N. P. p. 151. 1 Esp. Dig. part 1st, 292, Gould's edit.') I am of opinion that the mo- , _ _ 1 Ü011 0Ught Í0 be ¿lSmiSSed.

Grimlcé, Colcock, JVo/jf, Cheves, and Gañtt, J. concurred.  