#### John A. Cook *vs.*Abram Ashe.

Tried before his Honor Judge Gantt, Charleston, May Term, 183.6.

Assumpsit on account for $115.50.

Non assumpsit and the Statute of Limitations were pleaded,

Thomas Legare deposed, that Cook had an account against Ashe ; that Ashe brought the account to witness and asked him to examine it; that Ashe promised to pay it by instalments as soon as he could ; that it was not less than three years ago, and that the account was correct; that he asked Ashe the other day if he had paid *1.*he replied that he had not, that Cook had not given him the correct book. On his cross-examination he said that he never shewed this account to Ashe, nor does he renumber the amount of the account that Ashe promised to pay.

John A. Cook being sworn, testified that the book presented, is the regular book of enfries ; and that the amount is correct $115.50.

*247On this evidence, I charged in favor of the defendant. The jury found for the plaintiff.

The grounds taken on the appeal are, that the case was barred by the statute of limitations ; and that the verdict was against law and evidence. And both are to be judged of by the testimony.

RICHARD GANTT.

Mr. Justice Richardson

delivered the opinion of the court.

The debt claimed of the defendant, Ashe, consists in three annual accounts for goods, furnished by the plaintiff Cook, during the years 1827, ’28 and ’29 ; and two small items in 1880.

The suit was instituted 188 . So that all the accounts are barred by the statute of limitations ; unless the acknowledgments made by Ashe, to the witness, Thomas Legare, in 1833, can take the case out of the statute.

The acknowledgment of Ashe, is, that an account existed against him. But no particular sum w as acknowledged ; nor does it appear, what specific account was intended to be acknowledged. The acknowledgment, therefore, can amount to no more, than the avowal, that he owed Cook, on open account,, an unascertained sum of money ; which he would pay by instalments. The witness does not recollect, that he even shewed the present accpunt to Ashe ; nor the amount of the account assumed. But he lately said, he had not paid it; and that Cook had not given him the correct book.

There is, then, no express assumption of any specific amount, or account.

Under such evidence, it is clear, from the decision, in the case of Young vs. Mompoey, that the acknowledgments of Ashe, can revive, and render him liable, for no more of the accounts against him, than so much as was not barred, by the lapse of the four years, between the date of the account, and the acknowledgment in 1833.

The evidence of Thomas Legare was competent; and was very properly left to the jury. But as the accounts for 1827 and 1828, were fully barred, and could be revived, only by an express assumption of them, to Cook ; the evidence W'as applicable to, and could only serve to keep unbarred for four years after the acknowledgment, the accounts for 1829 and 1830 ; and not the accounts for 1827 and 1828, which were already barred, in 1833.

A new trial is, therefore ordered, unless the plaintiff shall remit, and release to the defendant, the sum of $88.6 1-4 j. which is the *248amount of the accounts for 1827 and ’28 ; so as to leave the re. covery against the defendant in force, for no more, than $26.431-4S the amount of the accounts for 1829 and ’30 ; and which had accrued within four years, next, before the acknowledgment in 1833.

Seymoyr, for motion.

Filed 14th February, 1837.

J. S. RICHARDSON.

We concur,

JOHN B. O’NEALL,

JOSIAH J. EVANS,

A. P. BUTLER.