Assumpsit, to which the defendant pleaded the general issue and the statute of limitations.
Upon the trial it appeared that the defendant's testator was acting as the deputy of the sheriff of Tyrrell County, and as such had an execution in his hands against the plaintiff, and under it raised about $16, which was indorsed upon it. He, then, in the early part of 1840, levied upon and sold other property of the plaintiff to the amount of $20 or $25, which did not appear as an indorsement on the execution. A ca. sa. for the same debt was afterwards taken out and satisfied by the plaintiff. The plaintiff alleged that the $20 or $25 which had been received by the defendant's testator had never been applied towards the execution in his hands, and called upon him to repay it. He replied that he did not know that there was any mistake, but if there was, he would settle it. This was in 1842, and the action was commenced in 1843, more than three years after the money had been received by the defendant's testator. The defendant objected that the action ought to have been brought against the principal sheriff and not against the deputy; and, if that were not so, yet it was barred by the statute of limitations. The court (360) instructed the jury that if the money was received by the defendant's testator, and never applied in satisfaction of the execution against the plaintiff, but remained in the testator's hands, and the testator promised that if such were the case he would settle it, the action might be *Page 258 sustained against the defendant, and the bar of the statute was removed by the promise to settle.
The jury, under these instructions, returned a verdict for the plaintiff, and the defendant appealed. If the defendant's testator had not made the (361) promise to pay and settle the debt in case the mistake could be pointed out to him, the plaintiff could not have recovered, but would have been driven to the high sheriff for satisfaction for an injury done by his deputy in the execution of his office. The mistake or negligence was made to appear; and there was an express promise by the testator, in that event, to settle and pay the debt. The action is brought on this promise, and he consideration to sustain it is the plaintiff's money then in the party's hands, and that the testator then became discharged from the high sheriff for the same debt. The promise did not remove the bar of the statute of limitations, as the judge supposed; for no bar had ever been created by force of the statute. The judgment must be affirmed.
PER CURIAM. No error.