#### Joab Alexander v. John B. Hutchinson.

From Iredell,

A promise, after arrival at full ag-e, to pay a debt contracted during' infancy, may be inferred ; it is however an inference of fact, and is to be drawn only by the Jury.

An implied promise to pay a debt barred by the statute of limitations, is an inference of law.

Assumpsit for goods sold by the Plaintiff, as administrator of *William Hutchinson.*Plea infancy. Replication, that the Defendant promised after he came of age. On the trial, a witness, who had been the Guardian of the Defendant, proved that the Defendant, after he cameof age, together with the other distributees of *Wm.*Hutchinson, and the Plaintiff, requested him to settle their accounts *;*that between the Plaintiff and Defendant a balance was struck in favor of the former, which was sought to be recovered in this action. The Defendant said he was not allowed all his credits, but was informed by the witness, that all had been allowed. The witness further said, that Defendant made no objections, neither admitting nor promising to pay the balance, and that the company separated in a friendly manner.

His honor Judge Paxton, charged the Jury that, as a general rule, the Plaintiff was bound to prove an express promise, to entitle him to recover. But, from the opinion of one of the Judges of the Supreme Court *14in this case, if they believed the witness, they ought to give the Plaintiff a verdict.

The Jury returned a verdict for the Plaintiff. A mo^.¡on was nia(]e for a new trial for misdirection, which was overruled, and judgment rendered upon the verdict. Whereupon the Defendant appealed.

*Wilson*for the Defendant.

The case has before been reported — 2 *Hawks,*$35.

Taylor Chief Justice, and Henderson Judge,

delivered the opinion of the Court.

Taylor, G: J.- — It should, I think, have been left to •the Jury to determine whether they could infer, from the Defendant’s behaviour, a clear and unequivocal assent to, and ratification of, the contract. Any act or conduct on his part, denoting a full assent of the mind, and leaving nothing to doubt or conjecture, without the utterance of any words, would be sufficient to warrant such an inference ; otherwise a man without the faculty of speech, would be incapable of ratifying a contract.

In this case, the inference was drawn by the Court, that if the evidence was believed by the jury, the Plaintiff was entitled to a verdict, whereas the intent of the Defendant entered into the very essence of his conduct, and could alone give it any effective meaning, and this was a matter of fact to be judged of by the Jury. There must be a new trial.

Henderson, Judge. — When it is said, that an implied promise will take a case out of the statute of limitations, but that it requires an express promise, after full age, to bind a person to the performance of a contract, made during his minority •, — all that is meant thereby is, that in the first case the *law*will make the promise, if there is an acknowledgment of a sufficient *consideration}*in the latter case, the *party*must make it himself: but the law has *prescribed*no *form*in which this promise Shall be made $ it may he by *words,*it may be by *signs*or *acts 4*
      *15any thing which shews an acquiescence, or an *assent*of the party’s mind, is sufficient. The Judge, therefore, mistook the meaning of the Judge of the Supreme Court, to whose opinion he referred in his charge; at least he mistook the law in saying to the Jury, that if they believed the aforesaid facts, (referring to the testimony of the witness,) they should find for the Plaintiff, lie should have told them, that if tiiey believed the facts, and inferred therefrom that the Defendant promised to pay, that is, in the manner before stated, yielded or gave his assent to pay, then they should find for the Plaintiff; for very dearly, from the facts deposed to, it was an inference of *fact,*and *not*of *law,*whether he promised or did not promise. *He,*therefore, undertook to draw an. inference of *fact,*when he gave these instructions.

The Judgment must be reversed, that the Jury may -act understandingly on the subject.