#### BENJAMIN SHERROD vs. BRYAN BENNETT & AL.

To take a ease out of the statute of limitations, pleaded in an action of as-sumpsit, the promise or acknowledgment must be an express promise to pay a particular sum either absolutely or conditionally; or such an admission of facts, as clearly shews, out of the party’s own mouth, that a certain balance is due, from which the law can imply an obligation and promise to pay; or that the parties are yet to account and are willing to account and pay the balance then ascertained.

The cases of *Peebles*v. *Mason,*2 Dev. 367, *Smallwood*v. *Smallwood,*2 Der. and Bat. 330, and *Rainey*v. *Link,*3 Ired. 376, cited and approved.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1848, his Honor Judge Caldwell presiding.

This was an action of assumpsit upon a *quantum me-ruit,*for work and labor done by the plaintiff for the testator of the defendants. Pleas, the general issue, and the statute of limitations.

It appeared upon the trial, that the plaintiff had lived with the defendants’ testator, serving him in the capacity of a manager or overseer, from January 1828, until January 1844. The suit was commenced in November 1846, and the plaintiff, for the purpose of repelling the bar of the statute of limitations, called several witnesses to prove acknowledgements of the debt, and promises *to*pay it by the testator within less than three years before the writ was issued. One of these witnesses testified that a year or two before the testators’ death, which occurred in August 1846, the testator said to him, that the plaintiff had lived with him a good long while, and he intended he should be paid for his services. Another witness stated, that, just before the plaintiff left the employment of the testator, the latter told the witness, that the plain*310tiff’s wages were not limited, and he intended to make him compensation at his, the testator’s death. A third witness testified that the testator told him, in the year 1844, or 1845, that the plaintiff had not been paid for his services, but he intended to pay him, and he hoped, at the day of his death, the plaintiff would be satisfied, And to a fourth witness he said, the winter before his death, that the plaintiff had lived with him a long time, had done him more service than he could have expected from him, and if he lived, the plaintiff should be paid. The plaintiff was not present on any of the occations spoken of by the witnesses.

The defendants insisted that nothing was proved, which could prevent the operation of the statute of limitations. The Court charged the jury, that to remove the bar created by the statute, it must appear that the testator expressly promised to pay the plaintiff for his services, or made such an explicit acknow-ledgment of a subsisting debt, that a promise to pay might be implied from it; that if the jury believed the witnesses, there was proof, at least, of such an acknowledgment of a subsisting debt, from which a promise to pay might be implied. The jury, under this charge, returned a verdict for the plaintiff for the amount of his whole claim. A new trial was moved for, because of mis-direction by the Court, which was refused, and a judgment rendered, from which the defendants appealed.

*Biggs,*for the plaintiff.

*Hodman,*for the defendants.

Battle, J.

We cannot affirm the judgment in this case, without violating those salutary principles, which the later decisions of this Court have established upon this subject. In *Peebles*v. *Mason, 2*Dev. Rep. 367, it is said by the Court, that, to take a case out of the operation of the statute of limitations, “ the promise or *311acknowledgment must be an express promise to pay a particular sum either absolutely or conditionally; or such an admission of facts, as clearly shows, out of the party’s own mouth, that a certain balance is due, from which the law can imply an obligation and promise to pay; or that the parties are yet to account, and are willing to account and pay the balance then ascertained.” The principles thus clearly and explicitly stated have been rc-asserted and sustained by the subsequent cases of *Smallwood*v. *Smallwood, 2*Dev. and Bat. 330, *Rainey*v. *Link,*3 Ired. Rep. 376, and perhaps by others. In the case now before us, the testimony does not show that the testator acknowledged that any particular sum was due the plaintiff; much less that he promised to pay it. It contains no admissions of facts, so as to show out of the testator’s own mouth, that a certain balance was due ; and there is not the slightest intimation that there was an account between the parties, which the testator was willing to settle, and to pay the balance. His declarations to every witness, were vague and indefinite ; and some of them are of such a character as to leave us somewhat in doubt, whether he considered the plaintiff as having claims upon his bounty or his justice. To permit such expressions to repel the bar of the statute, would be to let in all the evils against which it was intended to provide. The cases cited by the plaintiff’s counsel are decisions of our sister States, and however high may be the respect, which we entertain for the Courts, which made them, we cannot permit them to over-rule, or even to modify, those of our own Court. The judgment must therefore be reversed, and a *venire de novo*awarded.

Per Curiam. Judgment reversed and a *venire de novo.*