#### Finch’s executors v. Elliot.

From Rutherford.

Where, upon a record and statement of the case sent to this Court, Vt appears that the charge of the Court was not applicable to the facts stated, a new trial must be granted: for if there wss no other evidence but that stated, the charge was irrelevant,- and if there was other evidence, it should form part of the case; and in either event a new trial will be granted.

This was an action on the *case,*brought to recover the amount of two orders drawn by one *Nelson,*in favour of the plaintiff’s testator, on the defendant, and which had been accepted by the defendant in 1812. Defendant pleaded, among other things, the statute of limitations; and on the trial it was proved by a Mr. *Hord*on behalf of plaintiff, that in the year 1817 the orders were sent to him by plaintiff, who lived in Virginia, for collection; that he called on the defendant and in a conversation with him he produced a number of papers, from which the witness became satisfied that nothing was due *to*the plaintiff, and lie returned the orders: in the year 1819 one *Janies Finch*came, to the state as agent for the plaintiff, and *Hard*went with him to see the defendant; in the conversation which took place, defendant again produced certain papers, from which *Hord*was satisfied, and he thought that the agent was also, that nothing was due. The writ issued April 15th, 1821, and .on one of the orders a payment was endorsed, hearing date May 1st, 1814.

The Court, on this evidence, instructed the jury that nothing short of an express acknowledgment of a subsisting debt, at the time of making the acknowledgment, could take a. case-out of the statute; that an agreement to settle would have that effect, and it was for them to say whether any -such agreement was made by the defendant *62at the times spoken of by *Hord;*if there was, they were instructed to find for the plaintiff, and if not, for the defendant.

The jury found for the plaintiff, and the case stood on a rule to show cause why there should not he a new trial.

*Wilson,*for defendant,

contended, that there was no evidence either of an acknowledgment or promise; and consequently, the charge of the Judge, however correct as to the law, had no application to the case as proved. He should have explained the law arising on the facts of *this*case, by informing the jury, that if the evidence was all true, yet the law would not, under the circumstances, infer a promise or acknowledgment.

Hair, Judge. —

When the Court charged the jury that there must he a subsisting debt at the time of the acknowledgment, or that a proposition to settle accounts would take the case out of the statute of limitations, it would appear that there must have been more evidence before the jury than appears upon the record sent here. It does not appear from the evidence exhibited here, that there was an acknowledgment of a subsisting debt, oran agreement to come to a settlement; and if there was no other evidence before the jury, I think the charge was not relevant, although there can be no doubt but it is warranted by law. If there was no other evidence before the jury, I think there should be a new trial; if there was, it should form part of the case; and for that purpose a new' trial should be granted. I think the evidence offered by the plaintiff establishes nothing from which a new' promise or an acknowledgment can be collected.

Henderson, Judge. —

I am almost afraid to touch this subject, for the decisions are so much at variance and so numerous, that, it is almost impossible to say any thing *63on the subject without being in opposition to some of them.

I still retain the opinion, that an acknowledgment of an unsatisfied consideration, when accompanied with an express refusal to pay, will take a case out of the statute; but in such a case the unsatisfied consideration should very clearly appear from the acknowledgment, taken altogether and in connexion with the things referred to in it, as if at the time of refusal there was an explicit acknowledgment that the debt had never been paid; or where it clearly appears from the reference there made, as if a defendant were to say, that he would not pay the debt, for that he was discharged from its payment by his certificate of bankruptcy, and it should appear that the debt neither was nor could be proved under the commission; it is not sufficient that it is shown by argument and conjecture, that it is quite probable that it has not been paid. The whole transaction taken together, where there is an express refusal to pay, or a reliance on the statute of limitations as a protection, which I think is the same thing, amounts to an acknowledgment of an unsatisfied consideration, it is not sufficient that the jury believe from other sources that the debt is unsatisfied, they must found that belief upon the acknowledgment and its references; otherwise it would amount almost to a repeal of the statute, in such cases, i. e. where there is an express refusal to pay. It is not sufficient that the thing referred to or relied on to show the discharge, does not show it; it should show the *reverse.*

In the present case, I cannot see that there was any evidence which the Court should have left to the jury; for allowing it to be true, it did not prove the point in issue upon the statute, nor could the jury infer it. The witness stated that the defendant, upon being applied to by him as the plaintiff’s agent, said that he had paid the debt, and produced papers which satisfied him that it was paid; that the plaintiff afterwards applied in the wit*64ness’s presence, who made the same reply as before, and again produced papers, which the witness thought satisfied the. plaintiff. Here was no evidence, either direct or indirect, from which the jury were at liberty to say that the defendant agreed to settle with the plaintiff, and Ihe Judge should have so instructed the jury. The rule for a new trial must be made absolute.

The Chiee Justice assented.

Judgment reversed.-.