#### *Bright Williamson vs. James*King, *Adm’r of Bacot.*

“Where a demand is barred by the statute of limitations, nothing less than a direct promise to pay, and an acknowledgement of a subsisting debt, due and owing, and which the party is willing to pay, will take the case out of the bar of the statute.

2. The promise must beso explicit, that the extent of the party’s liability will appear by the terms of the assumption.

*Before*EvaNS, J. *at*Darlington, *Fall*Term, 1836.

This was an action of assumpsit on four notes, and a due bill, viz:

1st. Note dated 6th May, 1812, for £115 4s. 8d, with a credit endorsed of $500 in January 1817 ; payable to plaintiff.

2d. Note dated 7th July, 1819, for $875 14, payable to Williamson *&*Prince.

3d. Due bill 20th January, 1819, for $2 10.

4th. Note dated 23d. January, 1821, for $436 32, with credits endorsed for $278 67, the last of which is 27th April, 1822. This note is payable to Williamson *&*Lide or bearer.

5th. Note date 3d. February 1821 for $457 16 1-2.

The amount due on these various demands, with interest, is now upwards of 3500. The defendant pleaded the statute of limitations. Bacot died in October 1833, and this action was brought at Fall Term 1835. Bacot had been sheriff of Dar-lington from 1821 to 1825, and there were, as was said, unsettled demands between the parties in matters appertaining to that office. To rebut the plea of the statute of limitations, the plaintiff offered the following evidence.

*Peter C. Coggeshall.*— Within 3 years before Bacot’s death, he heard a conversation between Williamson- *&*Bacot; Williamson’s object seemed to be to avoid the statute of limitations ; Plaintiff said, we have not settled for a long time, and proposed fixing a day for settlement: Bacot said it made no difference about fixing a day ; Williamson said, let us say before these gentlemen that nothing between us shall go out of date ; Bacot hesitated and said he had never pleaded any thing out of date; Williamson replied, in case of our death let us prevent our representatives from doing it; Bacot reluctantly assented, but the witness did not remember the words he used. The conversation related to all transactions between them, whether of the sheriff’s office or in any way in which indebtedness could arise, *506but neither these nor any other specific debts were mentioned j Thomas Williamson & Wingate were present.

*Thomas Williamson.*— Heard the plaintiff frequently propose a settlement; remembers that in the old Court House heard plaintiff speaking to Bacot about a settlement; Bacot said it made no difference, as nothing between them should go out of date. This was 1, 2 or 3 ye?.rs before Bacot’s death.

The court said in charging the jury, “In charging the jury, I laid down the rule in conformity with *Young vs.*Montpeoy, *Bail. Rep.*that there must fie a promise to pay, or a clear admission that money was due, from which a promise to pay would arise. I advised them that according to my understanding of the rule, a promise generally not to plead the statute, without reference to the demand sued for, was neither an express or implied promise to pay the debt for which the action was brought; and they found, in conformity with my opinion, for the defendant.” The notice of appeal is annexed.

*Grounds for New Trial.*

1. That the promise of the defendant’s intestate not to plead the statute of limitations to plaintiff’s demands, was sufficiently proved, and as proved was sufficient to entitle the plaintiff to recover.

2. That there was error in the charge of the presiding Judge, that a mutual promise between the plaintiff and defendant’s intestate not to plead the statute of limitations to any demands subsisting between them at the time, was not sufficient to take the case from under the operation of the statute of limitations, unless there was in such stipulation-express reference to the particular demand or debt intended to be revived.

Curia, *per*

Butler, J.

The plaintiff’s motion, in this case, must be refused, on the authority of *Young vs.*Montpeoy, reported in 2 *Bailey.*At the time the defendant’s intestate had the conversation with plaintiff, some years before his death, he was under *no legal obligation*to pay any of the demands which the plaintiff has asserted in this action ; they were, then, not subsisting demands, being barred by the statute. The intestate Bacot might, however, have restored the demands and have sub*507jected himself to a legal liability to pay them, if they had not been settled.

Dargan, for the motion ; Wilkins, contra.

Nothing less than a direct promise to pay, or unequivocal acknowledgment of some specific demand or demands, would have subjected him to such liability. The promise must have been so explicit that his liability could have been made to appear by stating the terms of the understanding in a declaration, reference being had to the old demand for a consideration ; that is, the extent of the liability must appear in the terms of the assumption. If one were to say, I will not plead the statute, to a specific promissory note, or account, or bond, the liability to pay might be so distinctly admitted and implied that the party could not avoid it: but the extent of the liability would also appear at the same tithe. But where there is no specific demand mentioned or referred to, how can this appear *%*Bacot might have contested the original validity of some of the demands, if they had been mentioned ; others he might have said were paid. To have resuscitated an extinguished demand, he must have acknowledged it to be unsatisfied at the time he had the conversation; which he did not. The case quoted by plaintiff from 8th *Durn.*& *Ea.*181, will not sustain him. A credit was given on an account, by the consent of the party to be affected by it, *within*six years ; Lord Kenyon held that it amounted to an implied promise to pay the balance. But here there was a specific demand referred to, and the credit was made before the statutory bar had run. If the credit had been made after the expiration of the 6 years, there might have been something in the case.

The motion for a new trial is refused.

Evans, Earle, Gantt and Richardson, JJ. concurred.