¶1delivered the opinion of the Court.
¶2This was an action of assumpsit against the defendant, as executor, on a promissory note given by his testator. The defendant plead non assumpsit, and pon assumpsit within six years. Replication, a special promise made by the executor, to which there was a special demurrer setting out for cause that the promise of the executor was not averred to be in writing. The Circuit Court overruled the demurrer and gave judgment for the plaintiff. The defendant now assigns as Error,
¶31, That the demurrer was overruled.
¶42, The judgment should have been respondeas ouster, and not final; and,
¶53, Should have been de bonis testatoris, and not de bonis propriis.
¶6If the action had been on a promise by the executor to pay the debt out of his own estate, the Statute of Frauds would require that the promise should be in writing; but in order to take the case out of the Statute of limitations, it was not necessary that the promise of the executor should be in writing.
¶7As to the second assignment — The Record does not shew that the defendant prayed for leave to plead further, and the Court was not bound to grant it unless it had been asked for; but,
¶8On the third assignment, the judgment must be reversed, and the proper judgment rendered here.