The declaration in this case contains five counts, on promises made by the defendant’s intestate to the plaintiff; the sixth and last count states that the said Margery Dixon, administratrix as aforesaid, after the death of the intestate, accounted with the plaintiff concerning di-. vers sums of money due and owing from the intestate, and that upon such account the intestate was found indebted to the plaintiff in the sum of three hundred pounds, and that the said Margery, ¡n consideration thereof, promised the plaintiff to pay him the said sum of money. The defendant pleaded, that neither the intestate, nor herself, assumed in manner and form as the plaintiff liad declared; and further pleaded non assumpsit infra tres annos, and actio non aecrevit infra tres annos, on which issues were joined. The jury, by their verdict, find that the intestate did not assume upon himself in manner and form as the plaintiff had declared.
By the proof stated in the bill of exceptions, it appears that the plaintiff’s cause of action accrued three years before the institution of the suit. And the plaintiff, to avoid the bar set up by the defendant in her second and third pleas, proved that the plaintiff and defendant had agreed to refer the claim of the former to arbitration; that immediately preceding the institution of the suit, to wit, on the 13th of August, the plaintiff presented his account to the defendant, who said she did not wish to see it; that she would pay all just claims against the estate of the deceased, as soon as she obtained money, and that she would put the money into the hands of the orphans court, to have the name adjusted, and that if the plaintiff would pass his account with the orphans court she would pay it.
On this proof the counsel for the defendant prayed the direction of the court to the jury, that the plaintiff was not entitled to recover. The court directed the jury that the conversation on the 15th of August did not take the case out of the act of limitations, as the plaintiff’ had not complied with the condition of the promise, by procuring his account to be passed by the orphans eourt. To this opinion the plaintiff’ excepted. That the declarations of the *530of the defendant on the 15th of August would be sufficient to prevent the operation of the act of limitations in a'case where, from the pleadings, they were legally admissible, I have no doubt. By announcing her deterrpination to pay all just claims, she waived all benefit of the statute, and her subsequent promise to pay the account if the orphans court would pass it, demonstrates her willingness to pay the claim, if it was found to be correct.
The authority'of Heyling vs. Hastings, 1 Salkeld, 29, is decisive on this point. The defendant being requested to pay for goods which he had purchased six years before the institution of the sui't, denied that he had bought the goods, but further said, “prove it and I will pay you.” This promise was deemed sufficient to relieve the case from limitation. -
■ The next question is, what is the effect of those declarations with reference to the pleadings in the cause? The five first counts are founded on assumptions made by the intestate to the plaintiff; under neither, of those counts was the said testimony admissible to defeat the defendant’s pleas of limitations. Sarell vs. Wine, 3 East, 408. Secar vs. Atkinson, 1 H. Blk. Rep. 102. 1 Chitty's Plead. 204, 205. 2 Saunders, 63, (note 6.)
Upon an examination of the.sixth count it will be found, that the assumption therein stated is made by the defendant in proprio jure, and not as administratrix. The count does not state that the defendant, as administratrix, promised to pay the balance found due on the accounting, but avers the assumption to be made by her, without any reference to her representative character. The words are, “that the said Margery, in consideration thereof, promised to pay.” True it is that the count commences by saying, “that the said Margery, administratrix aforesaid, accounted with the said Samuel Chapman; but this does not amount to an averment that she accounted as administra-trix; and even if it did, there are no words of reference by which, her promise to pay could be construed into a promise to pay in autre droit. The case of Henshall vs. Roberts, 5 East, 150, is full to this point.
■ In this view of the case there is no averment in the record of any promise made by the defendant as administra-trix, and therefore her declarations, according to the authorities herein before referred to, could not disprove her second and third pleas.
If the last count would, when standing alone, be sufficient to charge the defendant personally, its association in this case with the other counts, taints the whole proceeding, by occasioning a misjoihder in action. But I am clear in the opinion that the last count, whether standing alone or in association with others, is essentially erroneous; as it states no promise or assumption by the intestate, or by the ■defendant as administratrix, it cannot charge the defendant as administratrix. It cannot charge the defendant personally, because no legal consideration is shown to support *531her promise. If she was indebted in one right, and pro*-jnised to pay in another right, from this promise she derived no advantage or convenience, and therefore the de-3nand cannot be supported against her in her personal capacity. Mitchinson vs. Hewson, 7 T. R. 344.
It was urged by the plaintiff’s counsel, that the jury did not find the whole matter in issue, as they had omitted to state in their verdict whether the defendant had assumed or not. Under the view which I have taken of the pleadings, such omission cannot operate to the prejudice of the plaintiff as the count containing the promise of the defendant was so essentially defective that no judgment could be rendered thereon in favour of the plaintiff I do riot mean to decide the question how far an agreement besween the plaintiff and defendant, to refer the matter in dispute to arbitration, would operate to take a case out of the act of limitations.
Martin, J. concurred with Dorset, J.JUDGMENT AFFIRMED.'