The action in the Court below, upon which the above certiorari was predicated, was founded upon a promissory note for the sum of Twenty dollars, due on the 25th of December, 1833 — which had a credit on it of Three dollars, dated 14th July, 1836 — and the suit was commenced on the 12th May, 1840. The statute of limitations was pleaded, and the Court below overruled the plea, deciding that the credit on said note took the case out of the statute: this was the ground of error alleged in the petition for certiorari, and the Justice's return sustained said allegation.
Upon the hearing of the certiorari, the Court is of opinion that the credit on the note is not of itself a sufficient acknowledgment of the debt to take the case out of the statute, and no proof having been adduced to shew that the money was in fact paid, to prove a promise to pay the note. It is therefore ordered, that the certiorari be sustained, and the judgment below set aside. WILLIAM EZZARD, ,r. s. e, e. c.