
    * John Horlbeck, survivor of Henry Horlbeck, vs. Benj. F. Hunt.
    After the statute has run out, there must be “an express promise to pay, or an admission of a subsisting debt which the party is willing and liable to pay/’
    Whether the acknowledgment proved is sufficient to take a case out of the statute, is a question for the Court, and not one of evidence or construction for the jury.
    Before Richardson, J , at Charleston, January Term, 1841.
    This was an action of assumpsit upon an account for work and labor done and materials furnished, &c., between the years 1820 and 1830. The defendant pleaded non assumpsit, and the statute of limitations. The account was proved ; and the case turned upon the question, whether the defendant had acknowledged and assumed to pay the debt within four years before the action had been commenced. The account had not been presented until 1840.
    Peter IIorlbeck, the son of Henry IIorlbeck, was offered as a witness, to prove an acknowledgment, &c., by the defendant. He was objected to, and released his interest in the case, (see his release;) and, on his voire dire, swore, that lie had sold out his interest in the estate, and had no further interest but in the debts. Upon this, the Court ruled that lie was competent to give evidence.
    He was then sworn in chief, and testified as follows : Witness presented tlio account early last year, and defendant said he would revise it. Early last summer, say two or three months after witness had called, lie called again. Defendant said he had revised the account, tíaid he could not pay it now. If it had been presented eight years ago, lie could easily have paid it. That circumstances had altered with him. That he could not pay. It would have to come in with his other debts. Witness told him they wished to close the books, and if he would settle by note, or bond and mortgage, at any time convenient to himself, it would answer. Defendant declined entirely to give any obligation ; say anything of the kind — as bond, note, &c. Defendant and witness were alone. A gentleman was in the next room. The door liad been closed by the defendant. Defendant did not object to any item. Thinks defendant liad the account in his hand. Said he was sorry it had not been presented before. lie made no objections*
    to witness. Thinks he said he presumed it was right, or something of the kind. He said it would come in to he paid with his other debts. Witness was authorized to make the oilers he did by plaintiff. A letter was written by Dr. IIorlbeck. Can’t say why the ' account was not presented. Iiis brother was a student with the defendant many years ago. He is now upwards of thirty yeais old. Plaintiff was indulgent to his debtors; or negligent perhaps. Difficult to get accounts from him.
    
      Cross-examined — Defendant said he could not pay the account now; but said something of presuming it was right. Did not say lie had examined it. It must come in with his other debts. Declined giving bond or note. That he could not pay it; it must come in with other debts. Can’t say if ho did or did not say that he would not come under obligation. Understood him to admit the debt; but spoke of his inability to pay. Gave no reason for not giving a note, that witness recollects. Has stated defendant’s words as well as he recollects.
    The plaintiff’s counsel argued, that, although there had been proved no express promise to pay the account, after the statutory bar had become complete, yet the acknowledgment proved was sufficient to take the case out of the statute.
    I charged the jury, that before they could find for the plaintiff they must be satisfied, (the statutory bar being complete,) that the defendant had promised anew, to pay the account. That the action in such case must be bottomed upon the new promise; the old debt being the cou-sideration. Such an action conld not lie, without some new undertaking on his part; and that it must amount to the expression of a willingness, and a liability still to pay the debt, which had been barred. The jury had, therefore, to decide whether the evidence proved such a promise, or not; and to End accordingly. They found for the plaintiff, and the defendant appeals on the following grounds :
    1. That the witness, Peter Horlbeck, was directly interested in the event of the suit, and, therefore, incompetent; and having been objected to, ought not to have been admitted to testify.
    2. That there was no evidence of any acknowledgment by the defendant, of any subsisting legal liability, nor any promise *to pay, but on the contrary a positive refusal to incur any obligation ; and there was nothing, therefore, to take the case out of the operation of the statute of limitations; and his Honor ought so to have charged.
    3. That the construction of the words alleged to have been used by the defendant, was a question of law for the Court, and not of fact for the jury; and his Honor erred in leaving the question to the jury, but should have charged directly, that they were not sufficient to prevent the bar of the statute.
    4. That the verdict is without evidence, against evidence and directly contrary to the settled law.
    Bnile¡]> f°r ⅛13 appellant,
    on the first ground, cited 1 Phil. Ev. 53, and contended that the witness, P. Horlbeck, had a legal interest, and was an incompetent witness. Cited 2 Starkie Ev. 734; 1 Phil. Ev. 49, 50, 52; and 1 Bail. Rep. 302; Pickett vs. Cloud.
    
    On the second ground, he cited and relied on 2 Bail. 278 ; Dudl. 118 ; and Chev. Rep. 33, and contended that the ground of recovery is an express assumpsit; but he denied that there was, in this case, any promise or undertaking (from the testimony) to raise even a presumption of a promise to pay.
    On tire third ground, Mr. Bailey contended that it was a question of law for the Court, and not such a question as should be decided by, or left to, a jury.
    
      Yeadon, contra
    — first ground — said, that if the witness, P. Horlbeck, had a legal interest, lie would admit that lie was not a competent witness, but he contended that lie had not such an interest as would exclude him from testifying; that he was not, in any event, liable for costs in this case. That this was not one of the specific debts, in which the witness liad a legal interest.
    On the second ground, he cited also, Dud. Rep. 118, and 2 Bail. 188, contending, at the same time, that it was not necessary, in order to take a case out of the statute of limitations, that there should be an express promise, but that a subsisting debt, with slight evidence, would take the case out of the statutory liar. Mr. Yeadon contended, further, that the statute of limitations never was intended to Pr'l<;l'l against a just debt, *but an unjust or antiquated 'Claim; cited 2 Starkie, 894. The testimony does amount to the acknowledgment of a just and subsisting debt. 2 Starkie, 893. Note from 4 East, 492. — Where one admits a debt to be due and just, he must prove that he utterly refused to pay, or the presumption arises that he promised to pay. He also insisted that if the expressions were ambiguous, they should go to the jury to decide; and ho contended that in this case the defendant did use ambiguous words ; cited 2 Starkie, 895, note A ; 2 T. Rep. 7(10; 8 E. Common Law Rep. 317 ; (1 lb. 447 ; Cliitty on Contr. G41, note. “If the words express ambiguity, they may properly go to the jury, and they may decide.” 2 M. & P. 583.
    
      Rice, do. From the commencement of this account up to the case of Young vs. Monpoey, in 1830, it required but very slight evidence to bar by the statute of limitations. He cited Cliitty on Conts. (127, and contended that the statute of limitations did not discharge the debt, but was only a bar to the remedy — the lien still existed. 2 Bail. 283 and 425 ; 2 Hill, 326 ; Cliitty on Contr. 642, were referred to. Mr. Rice said, that from the testimony, there was no ground or reason to suppose that the defendant denied the debt, and refused to pay it; but that he pleaded his inability, clearly intending that plaintiff should receive a dividend of his property. Cited Leigh’s N. Prius, 1258 ; 1 (Wheaton) Selwyn, 142.
    
      Bailey, in reply,
    said that defendant had refused to incur legal obligation, and again contended that the witness, P. Horlbeck, was an incompetent witness, either from feeling or the pecuniary interest which he had in this case ; that he was entitled to a share of the personal estate not yet collected, and was also liable for his share of the costs of this suit. Mr. B. referred to May vs. Hancock, 
       decided in Columbia, May, 1829.
    
      
       MS. See 1 Rice’s Dig. 303, § 47; 204, § 35.
    
   Curia, per

O’Neall, J.

This is another of the many cases depending upon the rule in Young vs. Monpoey, (2 Bail. 278. It has been followed by so many cases, and with such uniformity, that it cannot now be shaken, by even a case of more than ordinary hardship. It is only necessary to state the rule, and see how this case is effected by it. After the statute has run out, there must be “an express promise to pay or an ^admission of a subsisting debt which the party is willing and r*9fl1 liable to pay.” On the present occasion, there is no pretence that L there was an express promise to pay. What is meant by the admission of a subsisting debt, which the party is willing and liable to pay ? I think Judge Johnson, in Young vs. Monpoey, (2 Bail. 280,) gave a very happy illustration of what is meant. He said “if there be an unequivocal admission, that it is due and unpaid, unaccompanied by any expression, declaration, or qualification, indicative of an intention not to pay, the state of facts on which the law implies a promise, is then present and the party is bound by it. ” This illustration was further explained and enforced in Reigne vs. Desportes, (Dud. Rep. 118,) which declared the old debt to be the consideration, and the new promise the cause of action. Taking either or both of these, it is apparent that the promise here is not sufficient. It admitted the old debt to be due and unpaid, but it was accompanied by a plain expression that the party did not intend to pay, when lie said “ he could not pay,” and when he declined the very liberal offer to settle by note or bond on his own time. Let it be tested by asking where is the new promise on which an action could be sustained ? It cannot be contended that it is found in the admission of a debt, of which the defendant says “if it had been presented eight years ago, I could easily have paid it. Circumstances have altered with me. I cannot pay. Ilis other observation, “ it must come in to be paid with my other debts,” is all which remains. But that is no undertaking to pay it- It is simply saying it must stand as it is, and take its chance for payment with my other debts. The true mode, however, of arriving at what the defendant meant, is to take the whole conversation, and when we do, we see that W'hile the defendant admitted that the debt once was due, and might once have been paid, that now he declined to admit either his liability or willingness to pay.

The case of Hughes vs. Hughes, (Cheve’s Rep. 34,) was a stronger admission than that which is relied upon here, and yet the bar of the statute was there allowed.

In Lowrey vs. Dubose, (2 Bail. 425,) the promise was in writing, endorsed on the note “ this note was given in swap of horses, which (if admitted, though out of date, and sued in Sumter district, shall never be pleaded in court, as I take no advantage of the Act of Limitations.” r4he con(btions ^contained in this promise were complied with, and it was held to take the case out of the statute. That was a plain admission of a subsisting debt, which the party admitted he was willing and liable to pay, notwithstanding the statute. From the conditions he probably intended to endeavor otherwise to defeat the payment. But there was no refusal of payment accompanying the promise, and therefore that case cannot help the plaintiff.

See 6 Rich. 27, 219; 3 Rich. 2S7; 4 Strob. 220; Dud. 118; 2 Bail. 310; 3 Hill, 223. An.

It has been said the admission proved here, was ambiguous, and that therefore the jury might well conclude that it was equivalent to the legal requisition. But I hold, as it was ruled in Trammell vs. Salmon, (2 Bail. 308, 310, 311,) that whether the acknowledgment proved is sufficient to take the case out of the statute, is a question of law for the Court, and not one of evidence or construction for the jury. Any other rule will destroy the whole force and uniformity of the rule settled in Young vs. Monpoey, and will present the very state of non certainty which that rule was intended to remedy. One kind of acknowledgment will do before one jury, while a different one will be required by another. This must not be. I perceive the late decisions in England, under Lord Tenterden’s Act, by leaving the construction of written promises to the jury, are literally repealing the statute. This consequence there will prevent us from following. Our course is settled. We shall adhere to the rule in Young vs. Monpoey, in all cases, and shall consider that its application belongs to the Court and not to the jury.

The motion for a new trial is granted.

The whole Court concurred. 
      
       6 Rich. 124. An.
     