#### JOHN McRAE *vs.*MATTHEW N. LEARY, EX’R.

To take a debt, claim, or demand, out of tlie operation of the Statute oj limitations, there must he a promise, cither express or implied, to pay a certain and definite sum, or an amount capable of being reduced to a certainty, by reference to some paper, or by computation, or in some other infallible mode, not depending on the agreement of the parties, or the finding of arbitrators, or a jury.

A .judgment for costs under Act of Assembly, Rev. Stat., ch. 4, see. D, is a ‘ matter of discretion with (lie Court below, and cannot be revised in this Court.

(Peebles v. Mason, 2 Dev, 367. Smallwood v, Smallwood, 2 Dev. and Bat. 330. Rainy v. Link, 3 Ired. 37G. Sherrod v. Bennett, 8 Iredell 309. Smith v* Deeper, 10 Ire. 86. Moore v. Hyman, 13 Ired. 272. Shaw v. Allex, Bus. 58. McBride v. Gray, Ibid. 420. Holmes v. Johnson, 11 Ired. 55, — cited and approved.)

This is an action of apsuMpsit for goods sold and delivered, commenced in the County Court of New Hanover, carried by appeal to the Superior Court, and tried before his Honor Judge Settle. Plea: Statute of Limitations. Upon the trial, the plaintiff introduced one Stephen D. Wallace, as a witness, who testified that he. was at the time of the sale and delivery of'the goods -a book-keeper for the plaintiff, and delivered the same to the defendant’s testator at various times, from the month of October 1843, to June 1846.

On the trial, the book of the plaintiff was produced, containing the amount, and the said witness further testified, that a few days before the death -of the defendant’s testa*92tor, which occurred in June 1846, he and the testator were-on the slide of the plaintiff’s mill, when the testator said to-the witness, *“*my account has been handed in. I owe John " McRae a large amount of Money, and am afraid 'he is getting uneasy, but as soon as I finish the building I am now working on, I will call and: settle it.” The witness did not see the account, or'accounts which-had been handed the-defendant, and therefore could not say that they corresponded with the account stated in the books. The account as appeared by the books w-as f980, of which- 312 Í2-100 was not barred by the Statute.

■ The plaintiff’s counsel asked the Court to charge the jury, that if they believed the testator, when he used the expression “my account,” meant the account which had been handed him by the plaintiff, and said “I will settle it,” thereby meant he would pay it, that it w-as such a promise as would' take the case out of the operation of the-Statute, with-the aid of the maxim, *“Id certum est, quod cerium reddi potest,*though no account was present and no-amount named--

The Court charged the jury that they would find their verdict from the testimony, and the witness stated that he did not see or know the amount of the account, and if his testimony did not satisfy them, that the defendant in his conversation with the witness,-referred to-the amount of the account of the plaintiff’s books, his testimony would not-t'ake the case out of the Statute. The Court farther remarked, that the jury, as honest men, would require testimony to establish a fact before they would find it..

The jury rendered a ver diet for the plaintiff for the- . amount of the account recovered in the County Court, which was the amount not barred’ by the Statute of Eimita-tions, with interest up to this time.. Rule for a now trialr Rule discharged. Plaintiff prayed an appeal to the Supreme Court, which was granted. On motion of the defen- *93■ dant’s counsel, the Court gaye judgment againt-tbe plaintiff .for the cost of tbe appeal from tlie County Court.

Troy, for the plaintiff.

*D. Reid and Winslow,*.for the defendant.

Battle, J.

It may now be considered to bo a well 'established principle in this State, that to take a debt, claim, or demand out of the operation of the Statute of Limitations, there must be.a promise, either.express or implied, to pay a certain and definite sum, or an .amount .capable of being reduced to a certainty by reference to some paper, or by computation, or in some other infallible mode not depending on the agreement of the parties, or the finding of arbitrators, or a jury. Peebles v. Mason, 2 Dev. 367. Smallwood v. Smallwoo, 2 Dev. and Bat. 380. Rainy v. Link, 3 Ired. 376. Sherrod v. Bennet, 8 Ired. 309. Smith v. Leeper, 10 Iredell 86. Mooke v. Hyman, 13 Iredell 272. Shaw v. Allen, Bus. 58. McBride v. Gray, Ibid. 420.

This principle seems to have been fully understood, and was correctly applied by his Honor in his. charge to the jury. The declarations made by the defendant’s testator to the witness Wallace, referred either to the .account standing •against him on the plaintiff’s books, or to the account which he said had been handed in. Whether .the reference .was ¡to the one or the other, was a question of evidence.for the jury, and it was properly submitted to them as each. If the account on the books was referred to, then the promise to settle it was a promise to settle . and pay an account which was capable of being reduced to a certainty, and in that -case, the jury were told that the bar of the Statute would be repelled. But if the account handed in were meant, then, as that account ivas not produced and there was no evidence of its amount, there were ho means of ascertaining ■ it by computation or otherwise, and the jury were instructed *94that there was nothing to prevent the operation of the Statute upon that part of the account, which had been contracted, more than three years before the commencement of the suit. The latter part of the charge to which the plaintiff excepts seems to me to be directly within the principle above set forth, and of course must be sustained.

The judgment against the plaintiff for the costs of the appeal was a matter of discretion with the Judge of the Superior Court, (1 Rev. Statute, ch. 4, see. 9,) and consequently we cannot revise it. See Holmes v. Johnson, 11 Iredell, 55.

The judgment must be affirmed