#### EZEKIEL COLLETT *against*ALLEN M. FRAZIER, *administrator.*

Where the vendor of a slave, through, mistake, surprise and ignorance, and without consideration, inserted in the bill of sale, a release of all the purchase-money, when he had only received a part, he is entitled to. relief in Equity.

AVhere a person, on his death-bed, said to a bystander, he owed so much to the plaintiff, (mentioning the sum) as a balance for certain slaves, which he had theretofore bought, and that he wished it paid, it was *Held*a sufficient acknowledgment of the debt, to take it out of the statute of limitations.

Cause removed from tire Court of Equity of Randolph county.

The plaintiff having a claim, under the will of his father, to one-fifth of a family of slaves, which had been bequeathed to him and four other brothers, to be possessed when the young*81est brother, Washington, should come of age, sold the same to his brother Ezeltiel, the defendant’s testator, for $350, and made a bill of sale, in the ordinary form, for his share of the property, in which was contained an acknowledgment that he had received the purchase-money and a release for the whole amount.

The plaintiff, in his bill (to which there was an amended bill) alleges, that he never received but one hundred dollars of the sum thus released; that being very poor and much in need of money, while his brother Washington was still under twenty-one years of age, lie sold his interest in the property, which had been bequeathed to him by his father, to his brother Ezekiel for $350, and made the bill of sale as above stated ; that on the day when he made the bill of sale, Ezekiel was to have paid him the hundred, dollars and given his note for $250; that when they met for the purpose of concluding the bargain, Ezekiel said he- had. been disappointed in getting- money, and therefore was not able to comply with his part of the agreement; he insisted, however, on plaintiff’s executing the bill of sale, and by promising, in a few days, to pay the money and give his note as agreed, he was prevailed on to do so; that, shortly afterwards, he paid him the one hundred dollars, but they disagreeing about the amount for which the note was-to, be made, the plaintiff insisting that it was to be for $250, and his brother that it was to be for only $200, no noto was ever given. The matter remained so until after three years had expired, but that the defendant’s testator, within the three years before the bringing of this suit, had distinctly acknowledged the existence of the debt, and had promised to pay it. He particularly relies upon an ac-knowledgement and promise made in his last illness, a few days before his death, which was within one year before this suit was brought. The plaintiff gives as a reason for appealing to the jurisdiction of the Court of Equity, that if he had sued at law he would have been barred and estopped by his acknowledgment of payment and the release in the bill of sale, which he had given to his brother j that that acknowledge*82ment was inserted from mistake, ignorance, and a misapprehension of its effect upon his rights.

The prayer is for the payment of the balance due him upon the original contract for the sale of his interest in the slaves.

The defendant, who was sued as administrator with the will annexed, answered and denied the allegations contained in the bill. He also relied on the statute of limitations.

There were replication and proofs ; and the cause being set down for hearing, was sent to this Court for trial.

*Morehead*and Qorrell, for plaintiff.

Bryan, for the defendant,

cited *Milton*v. Hogue, 4 Ire. Eq. 415, insisting that the allegations in the amended bill were contradictory to those of plaintiff’s original bill, and that, therefore, the Court could make no decree in his favor.

Battle, J.

¥e do not find any such contradiction between the allegations in the original and amended bill, as is insisted on by the counsel for the defendant. There are, indeed, some omissions in the original which are supplied by the statements in the amended bill; for instance, in the original bill the slaves in which the plaintiff sets up an interest under his father’s will, are spoken of as a “family of negroes,” while in the amended bill, he gives, as an extract from the will, the clause in which the negroes are named. In the original, neither the death of his father, nor of the defendant’s testator, leaving wills which were duly admitted to probate, nor the qualification of the defendant as administrator *cum testamento annaxo*of Samuel Collett, are distinctly and positively averred ; but in the amended bill these omissions are supplied. The case of *Milton*v. Hogue, 4 Ire. Eq. 415, referred to by the counsel, does not, therefore, stand in the way of the plaintiff’s claim to relief, if he be otherwise entitled to it.

The ground upon which the plaintiff bases his title to relief in Equity, is admitted. See *Crawley*v. *Timberlake,*1 Ire. Eq. Rep. 346. The only difficulties which he has to encounter *83are tlie proofs and the statute of limitations. The defendant cannot resist the force of the proofs that his intestate took a bill of sale for the plaintiff’s interest in the slaves in question, in which there was inserted an acquittance for the purchase-money, though it was not then all paid. The main reliance for defeating the recovery is the statute of limitations; this, the plaintiff admits, would bar him, but for distinct acknowl-edgements of the debt, and promises to pay it, made by the testator within less than three years before the bill was filed. Upon this part of the case, too, the proofs are clear and conclusive. The testator died in the month of April, 1849, and the bill was filed in 1851. While on his death-bed, and only a few days before his death, the testator admitted to his brother John that he still owed the plaintiff for the negroes, and said that John knew how much it was. John says, in his deposition, that he did not know how much the debt then was, but that, in 1841, when the parties attempted to settle, it was $250. The day before he died he told his sister, Mrs. Leach, that he owed the plaintiff abalance of $80 on the same debt, with some interest, which would make it amount to about $100 ; and that he wanted it paid. Here, then, is a distinct acknowledgement of a certain debt, if not a positive promise to pay it. This is clearly sufficient, according to all the authorities, to remove the bar of the statute; the court of equity, in this respect, following the rule in the courts of law. There is some other testimony of acknowledgements made at other times, which tend to corroborate the statements of the witnesses to whom we have particularly referred. We have not overlooked the testimony introduced for the defendant-, It shows that- the plaintiff, at different times, and to different persons, admitted that his brother, the testator, owed him nothing, while at other times, to one or more of the same witnesses, he insisted that his brother was justly indebted to him for the slaves. From the circumstances under which the admissions were made, it is manifest, either that the plaintiff was not serious in making them, or that he did it to avoid the payment of his taxes, or some other just claim about to *84be made upon him. *We*cannot, therefore, give to them the effect of disproving the testimony of the solemn declarations made by the defendant’s testator on his death-bed. Our conclusion is, that the plaintiff is entitled to a decree for $80, with interest thereon from the year 1841. As assets in the hands of the defendant have neither been alleged in the bill nor stated in the answer, there must be a reference, if the parties desire it, to ascertain whether any, and if any, what amount, is in the hands of the defendant, liable to the plaintiff’s recovery.

Pee CueiaM. Decree accordingly.