¶1The evidence offered in this case was undoubtedly admissible. The writing recited in the plaintiff’s declaration was a perfect transcript of it; and the allegation that the defendant executed the writing, by his testimony proved to be authentic, was unquestionably supported.
¶2The judge omitted to instruct the jury, that the above-mentioned writing, the only evidence adduced, did not support the promise laid in the plaintiff’s declaration; and in this particular, the proceeding below was manifestly erroneous. The promise averred was incorrect, for two reasons. In the first place, it was an assumpsit implied; and the express contract clearly excluded the implication. Expressum facit cessare tacitum. Secondly, the promise proved was essentially variant from the one alleged. The allegation was of a promise to pay a sum of money “in a reasonable time then to come”; and the proof was of an express engagement to pay the money on the 1st day of April, 1820.
¶3New trial to be granted.