The plaintiffs, to avoid the effect of the Statute of limitations pleaded by the defendant, replied that the defendant had made a new promise within the time, <fcc. To the replication, the defendant demurred, and the demurrer was sustained by the court.
The bar given as a limitation, and the causes which take a case out of its operation, depend upon the Statute, and, therefore, whoever •will avail himself of the benefits or privileges of the Statute in either case, must, by his pleading, bring himself strictly within its provisions. A verbal promise will not take a case out of the opeiation of the act. Every pleading is to be construed most strongly against the party pleading. The presumption is that inasmuch as the replication does not aver that the new promise was in writing, such was not the case. Such an averment is necessary, and'without it the replication is defective. Rev. Stat. ch. 91, sec. 14.
For the reasons already given in reference to the replication, the evidence offered by the plaintiffs was properly excluded. Besides, evidence showing a new promise was not admissible under the issue. That fact should have been replied and an issue formed upon it, before competent testimony could have been admitted respecting it.
Affirmed.