
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1803.
    Avant & Wife v. Sweet.
    An implied acknowledgment of a promise made, revives the contract, of i.s evidence of a new promise to satisfy the debt; but an acknowledgment that a wrongful act was done, cannot be so coupled with the wrongful act as to preserve it from the operation of the statute of limitations.
    If improper evidence has been admitted at the trial, it will furnish good ground to set aside the verdict, and for a npw trial. ' '
    Trover; tried before Johnson, J., in Marion District. Defendant had pleaded non culpabilis; non culpabilis infra quaiuor annos; and actio non accrevit infra quatuor annos: to which the usual replications were put in, and issues thereon. It appeared that the negroes which were the objects of the suit, were the descendants of a negro woman, which negro woman, the plaintiffs contended, had been given by a parol gift to the plaintiff, Mrs. Ayant, before she intermarried with Avant. The jury found tor the plaintiffs. The motion iu this court was for a new trial on several grounds, the principal pf which were : 1. That the gift set up by the plaintiffs, if ever made, was made while the donee was covert of a former husband, one Ganey, and that defendant is the administrator of said Ganey; and therefore if the gift took effect, it vested the property in Ganey absolutely, after whose death it devolved to his administrator. 2. That the pretended donee afterwards stood by, and did not oppose another gift by deed from the donor, her father, to his son Sylvius : but it did not clearly appear, whether this happened during her widowhood, or after her marriage with Avant. 3. That the Judge who presided at the trial, admitted in evidence, on the part of the plaintiffs, an advertisement published in a gazette, purporting to be a notice on the part of the donor, the father of Mrs. Avant, to all persons who claimed by virtue of any parol gift from him, any property, to make their claims known within a certain time, or they should be barred, &c., in order to rebut the operation of the limitation act; and allowed the jury to consider the same as evidence to revive the cause of action, or as an agreement not to avail himself of the act of limitations. o
    It was argued by Falconer, for defendant, and Wilds, for plaintiffs'.
    For the defendant it was urged, that although a slight acknowledgment of a debt will revive the contract, so as to save it from the bar of the limitation act, yet that the doctrine on this subject ha| .never been extended to causes of action arising ex delicio, but must be confined to causes arising ex contractu; and therefore admitting that the advertisement in question was properly admissible, if it had gone to acknowledge an assumpsit antecedently made, to take it put of the act of limitations, it docs not follow' that it was properly admitted to reviye a tort, or save from the operation of that act a oause of action founded on wrong: nor was it properly admitted in evidence to prove an agreement not to take advantage of the said #ct; because there was no consideration to serve as the foundation of such agreement.- That the plea of the act of limitations was properly pleaded here, and the evidence supported it. It is good against a feme covert. An infant is liable to be barred. Limitation act may be pleaded in bar of dower. Lide v. Reynolds, ante. p. 76.
    Warps, contra,
    
    cited 1 Esp. Dig. 150. Devise will revive'a promise and take it out of the act of limitations. The possession of defendant was in trust,for plaintiilj and the act does not run against a trust. The publication was a notice that donor did not intend to avail himself of the act. Quislibet renunciare juri pro se introducto. 2 Esp. Dig. 594. Goods left to bo used by consent, ^imitation act runs from the time of demand and refusal, the date of (he wrongful conversion. The acknowledgment of the existence of a right saves that right from the operation of the act of limitations.
   Per Curiam.

Waties, Bay, Trezevant, and Brevard, Justices.

The motion for a new trial must he granted on the ground that the evidence of the newspaper publication was improperly admitted at the trial for the purpose for which it was produced; viz. to show a revival or continuance of the right to prosecute this action, notwithstanding it might otherwise be barred by the act of limitations. The implied acknowledgment of a wrong committed, is not like an implied acknowledgment of a promise made. In the latter case the acknowledgment revives the contract, or is evidence of a new promise to pay a debt, and does away the presumption of its liavingbeen satisfied, arising from length of time : it may amount to proof of a new promise founded on the consideration of the former promise which has not been fulfilled. But the case is different with respect to causes of action arising from tort. An acknowledgment either express or implied, that such a wrongful act was done, cannot be coupled with the wrongful act so as to preserve that act from the operation of the statue of limitations; because the acknowledgment and the act are distinct and different in their natures, it would be like contracting to renew a wrong; and would be confounding tort and contract together. To say that.such an acknowJ. edgement will save the cause of action in the case of a trespass, or ol^ier tortj from the operation of the act of limitations would be m effeet saying that the acknowledgment of a wrongful act amounts to a promise that the wrongdoer will take no advantage of the act of limitations; or that the acknowledgment of the injury done, amounts to a fresh injury, which may be coupled with the old.

New trial granted.

jybts. A man having lost some horses, put out hand bills, which were generally circulated, offering a reward for til» recovery. A person having enabled him to recover the horses, apphe ' for the reward offered by the advertisement, which the man disavowed. An action was brought, and it was held that the publicity of the hand bills, and their general circulation was sufficient evidence 1o charge the party with being privy to their circulation. 3 Esp. Rep. 66.  