Where a plaintiff's claim, under the book-debt law, is proved (541) solely by his own oath, he is not entitled to recover for any articles delivered more than two years before the action brought. But if, instead of his own oath, he relies upon indifferent testimony, he may, under section 5, recover upon a book account for *Page 302 goods sold or work done within five years before the commencement of the suit; but even in that case the book of accounts shall not be received in evidence for goods sold or work done more than five years before the action brought.
It was thought by the Legislature that the plaintiff's memory could not be safely trusted, after the lapse of two years, biased as it might be by the interest he felt in the case; and that, after the lapse of five years, even disinterested witnesses could not be implicitly confided in, or that the defendant might have lost the evidence of payment.
(542) But it is objected that, five years having expired before the issuing the warrant, the account could not be established, even by indifferent witnesses. It is true that they could not, after that time, prove the entries in the book, for the mischiefs likely to arise from thence were precisely what the act by its limitation intended to obviate. But if indifferent witnesses prove an acknowledgment of the account within three years before issuing the warrant, what possible evil can thence arise? The effect of such an acknowledgment must be the same as it is in cases arising under the common statute of limitations, a revival of the original promise, not the creation of a new cause of action, for the lapse of time does not extinguish the debt, but only suspends the remedy. Such evidence places the case on the same footing as if it were brought within five years. That, in point of fact, there was no surprise on the defendant is manifest from this, that he pleaded the statute of limitations, thereby intending to insist that the book could not be proved by indifferent witnesses if the articles were delivered or the work done more than three years before the issuing the warrant.
Now the words of that statute are that suit must be brought within three years next after the cause of such action or suit, and not after; yet, the declaration, except against executors, charges and relies upon the original contract, and if the statute of limitations be pleaded, and the cause of action had, in truth, occurred more than three years before suit brought, the only question is whether the defense given by the statute is waived; and it is waived by a new promise. 16 East, 419.
Nor does even the replication to the plea state such new promise or acknowledgment; it simply denies the plea and refers to the promise as set forth in the declaration. 2 Chitty Plead., 605. The principle on which the statute is founded is the lapse of memory and the loss of evidence; but when an acknowledgment is proved to have been made within the limited period, it furnishes evidence that the (543) presumption on which the law proceeds is contrary to the fact in *Page 303 the particular case. The very same reasoning applies to the book-debt law which, without such a construction, will put debts thus evidenced upon a worse footing than other simple contracts, and instead of convenience and beneficial effects which the Legislature meditated, will be productive of the greatest mischief.
HALL, J. It is not necessary that the book-debt law should be pleaded by the defendant in order to bring it into operation. It operates upon the claim of the plaintiff. It declares that no book of accounts, although the same shall be proved by witnesses, shall be admitted or received if the items in it were of five years standing when the suit was brought. This must be understood to mean when the plaintiff cannot establish themindependent of the book. As when a witness declares that the entries in a book were in his handwriting, that he made no such entries unless he delivered the articles themselves, or saw them delivered by others, but that he has no rcollection [recollection] of the delivery of such articles, independent of the book in which the articles are charged. In such case the plaintiff's claim rests upon the book and the evidence given by the witnesses, and in such case the act forbids the book to be received in evidence.
But when the delivery of the articles, etc., can be proved by evidence, independent of the book, although they may be charged in a book, the case does not fall within the act which points out the method of proving book-debts; and so a promise to pay the debt, or an acknowledgment of it is competent and admissible evidence, and not within it. I therefore think a new trial should be granted.
HENDERSON, J., concurs.
PER CURIAM. New trial.
(544)