#### Allen S. Ballenger *v.*Elizabeth Barnes, *Ex’trx.*

When the plaintiff to rebut the plea of the statute of limitations proved that the defendant’s testator in his last sickness, sent for him, and expresssed great anxiety to adjust an unsettled account between them, and upon being disappointed, made entries of credits to which he was entitled, but no admission by him of a balance due the plain* tiff was proved: It was held, Daiclei. Judge, *dissentiente,*and Hen-veiison Chief-Justice, *dubitante,*that the evidence was not sufficient to authorise a verdict for the plaintiff, but that it should be left to the jury, with instructions to find for the defendant,. unless the testimony proved the testator to have been willing that the account should'he settled after his death.

A witness who is offered to prove what was deposed to on a former trial between the same parties, by a person who is dead, must give the substance of the testimony, not its effect.

Assumpsit in which the plaintiff, the sheriff of Johnston, declared against the defendant, for money had and received by her testator, *Henry Barnes,*to his use, and specially, that her testator, being a deputy of the plaintiff, collected the taxes in certain districts of *the county,*and had not accounted for them to the plaintiff. There were several other counts which it is unnecessary to state.

Pleas — 1st.' That the defendant’s testator did not assume and 2d, That he did not assume within three years.

The cause was tried before Norwood, Judge, at Nash on the last circuit.

Upon the issue on the first plea, the plaintiff offered a witness who had been of counsel for him on a former trial in the county court, to prove what a witness, since dead, had there deposed *;*the counsel stated that he had examined the witness, that he paid particular attention to his evidence, and had taken notes of it, which were then produced *;*that he did not pretend *to*have taken down the exact words of the witness, but that he believed that he was able to give the jury the whole of the testimony of the witness on the former trial, though not in the very words then used by him. Upon this statement his Honor admitted the evidence of the testimony of the deceased witness, and that testimony was material for the *461plaintiff. The defendant’s counsel then proposed to prove, that the deceased witness had deposed to other facts besides those in evidence, hut his Honor refused to stop the plaintiff’s case to receive the proposed testimony, observing that the competency of the plaintiff’s witness could not be.testedby the opposing recollection of another witness, but depended on the statement upon which it had been received; that the defendant-would be at liberty, when called on for his evidence, to offer to the jury such proof on that point, as he might think proper. Afterwards the defendant proved other facts deposed to by the deceased witness on his cross examination, which had not been stated by the plaintiff’s witness, which were material to the defendant, and then requested his Honor to direetthe jury to disregard all the evidence of the deceased witness, which the judge refused to do.

All the transactions between the plaintiff and the defendant’s testator, having happened more than three years before the commencement of the action, the plaintiff to repel the plea of the statute of limitations, introduced a Mr. *McLeod,*who deposed that he was sent for by the defendant’s testator, a few months before his death, but within three year of the issuing of the writ, and requested to draft his, the testator’s, will; that all his property was left to the defendant, his wife — that during the time the witness was writing the will, the testator requested the defendant to do something for his sister — that the defendant answered he had better leave her a legacy, to which he replied he was not able to do so, as he feared, when his affairs were settled and his debts paid, there would be but little left, too little to allow him to make a separate provision for his sister. The testator requested Mr *McLeod*to be his executor, which was declined, but Mr. *McLeod*promised to render any assistance in his power to the defendant, who was appointed. The testator then entered into conversation as to his business, stated that he never had settled with the plaintiff, and seemed much distressed at the thought of not doing so. At his request, Mr. *McLeod*made a memorandum ■of sundry credits to which he was entitled, in a settle*462ment with the plaintiff, several of which were similar to the following: “ I paid Mr. *Ballevger*142 dolls, at Feb- *“*ruary court, 1822 I think, for winch I have no receipt . “ and'this payment was made him towards a settlement *“*for tax money.”

Another witness deposed to a conversation between the plaintiff and the defendant’s testator, during his last ilness, within three years of issuing of the writ, in which the former said there never liad been a settlement between them, which was admitted by the latter, who said he wished they could come to a settlement.

A witness introduced by the defendant, deposed that a few days after the will was drawn by Mr. McLeod. he was sent by the defenant’s testator to the plaintiff, to request the latter to come and see him, that they might arrange their, business and have a settlement, to w'hich the plaintiff returned no answer. That afterwards, in consequence of a similar request, he again went to see the plaintiff during the sitting of the County Court, and was informed by the plaintiff that he could not then go, as he was. attending upon the court; that the witness asked him to-come directly after court, to which the plaintiff made no. reply. It did not appear that the plaintiff had any other claim against the defendant’s-testator, except thatfos which this action was brought.

His Honor informed the jury, that when a man admitted the existence of an unsettled account, and declared a willingness to settle it, a promise to pay what should be ascertained to be due was implied, and the de-fence of limitations, would be thereby waived, for to. what purpose, it might be asked, was a settlement to be made, unless the balance when ascertained, was to be paid. And therefore he instructed the jury, that if they were satisfied from the evidence, that the defendant’s testator did admit the existence of an unsettled account between him and the plaintiff, and declare his willingness to cometo a settlement with the plaintiff, they would be warranted in finding against the defendant upon the plea oí the statute. No modification of these instructions was asked, nor was any exception thereto taken/ *463the counsel for the defendant only insisting that there was no evidence to rebut the plea of the statute. A verdict was returned for the plaintiff, and a motion for a new trial being overruled, judgment was entered accordingly. The cause having been tried in the County Court, and the defendant having failed to reduce the amount recovered in that court, his Honor gave judgment for the additional (bur per cent, imposed by' the act of 1807, *{Rev. c.*713.) The defendant appealed.

The *attorney-General*and *Gaston*for-the defendant,

contended,

1st. That the judge had erred in not directing the jury to disregard all the testimony respecting what the deceased witness had deposed to on the former trial. For this was. cited 1 *Philips on Evidence*215, and *Lord Kenyon’s*opinion in *Rex*v. *Jolliffe,*(4 *Term. Rey.*290,) *Moseleij*v. *Moseley,*(2 *Hay.*305.)

2d. That there was no promise by the defendant’s testator, within three years, which was a waiver of the statute of limitation, and cited *Heyling*v. Hastings, *{Salk.*29.) *Quanlock*v. *England {Burr*2628.) *Loyd v.Mamul,*(2 *Term Hep.*760.) *Bryan v'.*Horseman, (4 *East.*599.) *JV Court*v. *Cross,*(11 *Eng. C L. Rep.*124) *Miller*v. *Caldwell,*(16 *lb.*168) *Knott*v. *Farrren, {lb.*191.) *Fearn*v. *Lewis,*(19 *lb.*98 and 326.) *Row croft*v. *Lomas, {4 M.*and *S,*457.) *Hillings*v. Shaw, (2 *Eng.C. L. Rep.*236.) *Beale v.Nind,*(6 *lb.*517.) *Sands*v. *Gelson,*(15 *John. Rep.*511.) *Bell y. Morrison,*(l *Peters*351.) *Scales*v. *Jacob,*(.13 *Eng. C.L.Rep.*85.) *Wilzellv. Btissard,*((1*Wheat. 309.) Bangs*v. *Hall,*(2 *Pick.*374.) *Ferguson*v. *Taylor,*(1 *Hay.*20.) *Bunk of Newbern v. Sneed,*(3 *Hawks*500.)

3d. That the judge below erred in entering up judgment for the penalty imposed by the act of 1807.

*Badger*and *Hevereux*for the plaintiff,

contended,

1st. That no objections could he made to-the charge °f the judge, as there was no.exception taken In the court below. *Hemphill*v. *Hemphill, {ante*2 *v, p.*291.) JUkin-*son v. Clarke, {ante*174.)

*464gd. That there was no error in receiving the testimony as to the evidence of the deceased witness, for which was cited, *Mayor of Doncaster*v. *Day,*(3 *Taun.*262.) *Ennis*v. *Dorristhrone,*(l *Philips E.*215.) *Doev.Passing-ham,*(12 *Eng. C.L. Rep.*209,) *Street y. Bonington,*(5 *Esp. R.*58.) *Jackson*v. *Bailey,*(2 *John. Rep.*17.)

3d. That the allowance of the additional four per cent, was a matter purely discretionary with the judge below, and could not be revised upon appeal.

4th. That the judges charge was correct, the jury warranted in finding a verdict for the plaintiff, and for this was cited *Ferguson*v. *Fitt,*(1. *Hay.*139’) *Peebles*v. *Mason, {ante*2 *vol.p.*367.) *Colledge*v. *Horne.*(11 *Eng. C. L. Rep.*59, *Bailie*v. *Lord Inchiquin,*(1 *Esp. Rep. ASS.') Frost*v. *Bengough,*(8 *Eng C.L. Rep.*318) *Loyd*v. *Maund*(2 *Term. Rep.*760.)

Henderson, Chief-Justice.

This is a most perplexing question. It is clear from the frequent, acknowledge-ments made by the testator, not long before his death, that there *were*many unsettled accounts between him and the pi aintiff, and that he desired to settle them in his life time. The credits which he directed *McLeod*to write down, plainly point to the nature of those accounts, and show that they were for the tax money received by him, as the collector and deputy of the plaintiff. But the amount due, if any thing, does not appear, from his admissions, otherwise than it can be collected from an observation made to his -wife, that he was largely indebted, but to whom he did not even allude, further than can be inferred from the accounts between him and the plaintiff, being principal the subject of their conversation. It is very unlike an acknowledgement made by a person by agreeing to enter into a *settlement,*or that another should settle for him. In a case of that kind why settle, unless the balance due was to be paid ? An admission of that kind would be a waiver of the statute, for the defendant says, “ I can and agree to stand upon my rights — I can do myself justice in the settlement.” In this case, there was a great anxiety on the *465part of the testator, to settle himself in his life time, that he might do himself justice, anda regret expressed that it could not be done upon the plaintiff’s last visit. His sending twice for the plaintiff, just before his death, evinced his great desire, that the settlement should take place, in his life-time and under his inspection, this was the settlement he was anxious and willing to have made— notone after his death, to which his estate is now called, and which the argument-must affirm, to derive any thing from his admissions, to be the one he was willing to have made. The statute was. passed to avoid litigation upon doubtful claims, and therefore when the doubt is done away by the admission' -of the party, or the benefit waived by him, it was thought to be in accordance with the spirit of the act, to declare, it formed no' bar to a suit. But here-we are left entirely in the dark, the statute has not been waived, by an agreement of the defendant’s testator to settle, except in his life-time ; and the proof is rather of an anxiety to settle, than a formal agreement, that the accounts might he settled at another time, or otherwise, than by himself in prospect of death. All the mischiefs of the statute will be let in, as the admission does not aid in settling the amount due, nor can we be satisfied, that' those are the accounts referred toj there may he olliers, and the credits entered by *McLeod*might not bo ail his payments, but only those for which he had no receipt, and his having them put down does not prove that he was willing that a settlement should take place after his death, but a wish to prepare for the worst. Upon the whole, I am inclined to think from policy as well as justice, anew trial should be awarded. There cannot he a non-suit, as that is entered where the plaintiff does not support his action by proof, not vdiere the defendant supports his plea.

There is. nothing in the objection that the witness wlio was examined by the plaintiff, as to the tes-, timony of one who had been sworn on a former trial, did not profess to give the very words of the deceased witness, but the substance only, No man can give the *466words where the testimony exceeds a single sentence.— The witness himself, if desired, after closing his test!-mony p, commence and go through with it again, could only give the substance in many parts. The difficulty has arisen from the English reporters confounding substance with effect: the latter usually will not do — it must be 'the words, or the substance. If the witness professed to be able to give the whole, it was proper to hear him, and when it appeared afterwards, that he was mistaken and omitted some material parts, according to the testi" mony of another witness, the court could not decide between them, and if it could, and the addition placed the whole of what the dead witness said before the jury, they would then receive it as evidence. They must be satisfied that they have the whole of what the witness deposed to, before them ; they must have ail or none, as the whole is to be explained by the whole and by every part. I do not know in such a case how the court could do otherwise.

I feel better satisfied in sending this case to a second jury, as the verdict is large, upon a very stale demand and against the estate of a dead man, although I am not entirely satisfied on the point of the statute of limitations. But there was no acknowledgment of a debt, or balance due, or an agreement to settle then or at any other time, but a great anxiety to have a settlement in his life-time. It evinced great unwillingness, for what is the object of this suit, viz. a settlement after his death, and that by an action.

ItuKRiiV, Judge concurred.

DANIEL, Judge,

*dissentiente.*after stating the case proceeded: All these facts were sufficient to authorise the jun to find that the defendant’s testator had acknowledged a subsisting debt due by him to the plaintiff. Upon a plea of the statute of limitations, the burthen is throw n upon the plaintiff, either of proving an express promise made by the defendant within three years, or an acknowledgement that the debt still subsists, and that acknowledgement is evidence, from which a new promise can he inferred, (He*yling*v. Hastings, *Ld. Ray*421,) or a new pro-*467miséis implied by law, or anew debt created. *(Bryan*v. *Horseman*4 *East.*599.) It is sufficient, if the jury find the fact of an acknowledgement, without finding a new promise by the defendant, for the law infers the promise. Neither is it necessary that the promise should be made to the plaintiff; it is sufficient, if made to a third person, to take the case out of the statute, *(Halliday*v. *Ward 3 Camp.*32, *Mountstephen*v. Brooke, *5 Eng. C.L. Rep.*245). If evidence be given by the plaintiff, to prove the existence of the debt *aliunde,*then it seems that any expressions of the defendant, which tend to show, that it has not been paid, may bo left to the jury, but if such evidence be not given by the plaintiff, a mere admission by the defendant, that a debt claimed has not been paid, will not be sufficient unless accompanied with the further admission, that the debt once existed, *(Rowcroft*v. *Lomas*4 *M.*& *S.*457.) The request of the defendant’s testator to Mr. *McLeod*to make out tiio list of credits, for which he had no receipts, preparatory to a settlement with the plaintiff, necessarily amounts to an admission that the latter had a debt against him, to which these credits were to bo applied*;*and if any other debt existed, to which those credits were to be applied, except the one now claimed by the plaintiff, the proof of that fact, lays upon the defendant. *(Baillie*v. *Inchiquin*1 *Esp. Rep.*435, *Frost*v. *Bengough*8 *Eng. C. L. Rep*318.) I think that the declarations of the defendant’s testator amounted to an admission, that he owed the plaintiff a subsisting debt, and that the law raises upon this admission a promise to pay it, and as this took place within three years of the commencement of the action, that it is not barred by the statute.

The next objection is that the judge refused to strike out all the evidence given by the plaintiff respecting the testimony of the deceased witness, because it was proved on the part of the defendant, that material parts of the. testimony.bad been forgotten by the plaintiff’s witness. If a witness who has been examined in a cause dies, and upon a subsequent trial between the same parties, his testimony becomes material, his evidence may be proved by any one who heard it. *(Mayor of Doncuster*v. *Day*
      *4683 *Taun.*262.) The witness offered to prove the testimony of the deceased, should have been present during the whole examination, and be able to state substantially the testimony then given. No one can be expected to narrate *in haic verba,*what a witness deposed to on a former occasion, and the law does not require impossibilities. But the witness must be. able-to give the substance of the testimony, not its effect, or the impression which it made upon his mind. He should be able to narrate substantially the facts and circumstances which were then deposed to, as the witness would have repeated them, had he been alive and been examined again. The witness offered by the plaintiff, thought he could relate all that the deceased swore to on the former trial, that made him admissible, and Ihe testimony of another person, who swore that there were facts which the first witness omitted, was to be left to the jury to weaken the effect of the evidence given by the latter. In other words, it went to his credit notto his competency, and the judge was right in refusing to strike the testimony out of the cause. The judge in the court below allowed the plaintiff to enter the judgment for four per cent, additional interest, from the time the judgment was rendered in the County Court. He did this because he thought the appeal was for delay. This was a question solely for his discretion, and although I think he erred, yet we have no power to revise his judgment. I think the judgment should be affirmed.

The allowance of four per cent additional interest, under the actofl807.(ffflTi *c.*713,) is a matter of discretion and cannot be revi ;ed upon appeal.

Per Curiam. — Judgment reversed.