
    Edward J. Robbins versus James Otis.
    
    In assumpsit for goods sold, the plaintiff, to take the case out of the statute of limita tions, proved that the defendant said he would pay for the goods, if A. B. woula say that he had had them, or, if the plaintiff would prone it by A. B. — leaving it m\ certain which expression was used. Held, that the plaintiff had not laid a found» tion for the admission of proof of A. B.?s declarations.
    This was an action of assumpsit to recover the price of a quantity of timber sold to the defendant in 1808. The stat ute of limitations was pleaded, and the plaintiff, in order to take the case out of the statute, produced a witness who tesiified that the defendant sain ©.liter, “ if Ellison will say that [ have had the timber,” or. 6 if the plaintiff will prove by Ellison that I have had it, I will pay for it,” but which of these two expressions was used, the witness could not remember. The plaintiff then offered to prove that Ellison did say the defendant had had the timber, but this evidence was objected to, on the ground that the above expressions meant two different things and it was not clearly proved that the defendant said he would pay if Ellison would say he had had the timber, and so no foundation was laid for the admission of the evidence offered ; and the judge who tried the oause, being of this opinion, rejected the evidence.
    
      Thacher and Warner
    
    now contended, that it was a question for the jury, whether either, and which of the expressions, had been used by the defendant, and that the evidence rejected should have been received, to be considered by the jury or not, according as they should determine the first question. Aylwin v. Ulmer, 12 Mass R. 22; Tyler v. Ulmer, ibid. 169.
    
      Fletcher and Bliss for the defendant.
    
    
      
       See 1 Pick. 368, S C
    
    
      
       See Bangs v. Hall, 2 Pick. (2d edit.) 368, and notes. A promise, to take a case out of the statute of limitations, must now be in wilting and signed by the party chargeable thereby. Revised Statutes, 700, c. 120, § 13. But the same language which before would take a case out of the statute of limitations, will now remove it from its operation if reduced to writing. Bangs v. Hall, 2 Pick. (2d ed ) 38D, note 1. See also Dodson v. Mackay, 4 Nev. & Man. 327.
    
   But the whole Court, for the reason before given, were of opinion that the evidence in question was rightly rejected.  