
    Kinsey Burden v. Mrs. S. M’Ilhenny.
    The slightest acknowledgment of a debt is sufficient to take the case out of the statute of limitations.
    
    Defendant, referring the examination of the accounts to her agent, or to one acting as mutual agent, is thereby to be understood as saying whatever shall be found due, X will pay.
    This was an action tried before Mr. Justice Johnson, Charleston, May, 1818, to recover the balance of an open account, due in the year 1800, by Mrs. Sarah Wilkinson, afterwards Mrs. M’Elhenny. A suit was commenced in 1809, which abated by the death of defendant’s husband. A second suit was immediately brought, and after it had been commenced, the defendant, in conversation with Mr. Deliesseline, requested Mm to examine the accounts, obswvimg that it had remained so long that she thought it had been settled; and she expressed a wish that he should have reference to certain papers. The witness did not examine the accounts, because he had before done so, in the lifetime of defendant’s husband, and found them correct.
    The pleas were non assumpsit, and non assumpsit infra quatuor annos.
    
    The jury found a verdict for the plaintiff.
    A new trial was now moved for, upon the ground *that the evidence rXg^ was wholly insufficient to revive the plaintiff’s remedy, and take the case >- out of the statute of limitations.
    
      
      
         The Executors of Wm. Boyd v. The Executors of Jas. Carmichael.
      This was an action of assumpsit, on two notes of hand, tried before Mr. Justice Richardson, at Orangeburg, Spring Term, 1819. The notes had been given by the defendant’s testator and one Warnock. And from the time which had elapsed, they appeared to be barred by the statute of limitations. The only question was, whether the testimony, offered to prove a subsequent promise, was sufficient to save the case from the operations of the statute.
      John Warnock, son of one of the drawers of the notes, swore that a *short J time before his father’s death, he heard him say he believed the notes were not satisfied; he expected money was still due by Carmichael. Carmichael afterwards desired him to inquire of Boyd if any thing had been paid on the no|es, or any arrangement made for that purpose by his father, as he had not been called on.
      The presiding Judge, after stating the law to the jury, instructed them, that if they thought this evidence amounted to an acknowledgment that the money was still due, the law would imply a promise to pay, and they must find a verdict for the plaintiff; but, on the contrary, if it did not, the verdict must be for the defendant.
      The jury found a verdict for the plaintiff.
      This was a motion for a new trial, on the ground that the verdict was contrary to the evidence.
      
        The opinion of the Court was delivered by Mr. Justice Nott.
      As there is no exception taken to the charge of the Court, in this case, we are to conclude that the law was correctly expounded, and the facts fairly submitted to the jury. The case, then, resolves itself into the question, whether they have so far mistaken the testimony, or drawn such incorrect conclusion from it, as will authorize this Court to interfere and set aside their verdict.
      The act of limitations has sometimes been held to be a law not much to be favored, and one which ought to be construed with great strictness. Por my own part, however, I consider it a very beneficial law, and that it is entitled to the same liberal exposition as any other Act. And although it may sometimes be made an engine of fraud by a dishonest and ungrateful debtor, yet I think it more frequently operates as a shield and protection to the ignorant and helpless, who have no other means of defending themselves' against the unjust demands of rapacious and dishonest creditors. But the number of cases coming within its provisions have scarcely left a question undecided to which they could, give rise. And among the decided cases I consider it now well settled, that a clear and explicit acknowledgment of the debt will save it from the operation of the statute. Yea v. Fokraker, 2 Burr. 1099 ; Trueman v. Fenton, Cowper, 548. And for the best of all possible reasons, a person is always permitted to renounce what is for his own benefit.
      The acknowledgment of a debt always implies a promise to pay. And it cannot require higher evidence to revive a stale demand than to establish a new one. Even a conditional promise is sufficient to take a case out of the statute. Heyling v. Hastings, 1 Salk. 29 ; S. C. 1 Lord Ray. 389, 421.
      
        A reference to arbitration has been held sufficient.
      
      But in this, as in every other case between positive proof, which is certain, and light presumption, which proves nothing, the shades of difference are so infinitely multiplied, that much must always be left to the sound discretion of the Court and jury. The evidence of acknowledgment in this ease, I think of very equivocal character. And I should have been very well satisfied if the jury had found a verdict for the defendant. But I think it was a question proper for their consideration. Lloyd v. Maund, 2 D. & E. 760. It appears to have been fairly submitted to them. And although this Court would not, in *all probability,' have found such a verdict, they do not consider it so manifestly contrary to evidence as *■ to authorize them to set it aside.
      The motion, therefore, must be discharged. 
      
      Gantt, Richardson, and Johnson, JJ., concurred.
      
        Stark, Solicitor, for the motion; Felder, contra.
    
   The opinion of the Court was delivered by ■

Coloook, J.

I think it is high time this question was at rest. I lay it down, that a bare acknowledgment of a subsisting debt is sufficient to take a case out of the statute of limitations. The Act was intended as a shield to protect from the payment of debts, which had been already discharged. Amidst the casualties of life, receipts or other evidences of payment, are frequently lost; and it was found, that the estate of deceased persons would be particularly liable to injury without the aid of this Act. Wherever a moral obligation exists, there the law raises' au assumption. Where a debt is due there is a moral obligation to pay; and would it not be absurd and contradictory so to construe the Act as to oppose this long established, wise, and just principle of the law ? I am aware that there are contradictory opinions and decisions on this subject. The weight of authority, however, will be found to be decidedly in favor of the rule, which 1 have laid down. 1 Selwyn, 150. The slightest acknowledgment has been holden sufficient; as saying, “prove your debt, and J will pay it.” “ I am ready to account, but nothing is due.” Trueman v. Fenton, Cowper, 548. The defendant, meeting the plaintiff, said to him, “what an extravagant hill you have delivered me.” Lord Kenyon held this as a sufficient acknowledgment that something was due. Lawrence v. Worrrall, Peake N. P. C. 93. S. C. 6 Esq. N. P. C. 92. So in Clarke v. Bradshaw, 3 Esp. N. P. C. 155-7. Bradshaw saying, “plaintiff had paid money for him twelve or thirteen years ago, hut that he had since become a bankrupt, by which he was discharged, as well as by law from the length of time.” Lord Kenyon held it to be sufficient to take it out of the statute. The defendant had applied to the Court in an affidavit for *Ieave to plead the ' statute of limitations, that since the bill of exchange, on which the action was brought, became due, which was more than six years before, no demand of payment had been made of him, This was deemed sufficient to be left to the jury, as an acknowledgment. And the jury having found a verdict for the plaintiff, the Court refused to grant a new trial. Bryan v. Horseman, 4 East. 599, and note a. to page 604. So where a letter was written by the plaintiff’s attorney, on being served with a writ, concluding in ambiguous terms, neither expressly denying nor admitting the debt, it was holden that such letter ought' to have been left to the jury to consider whether it amounted to an acknowledgment of the debt, so as to take it out of the statute, Lloyd v. Maund, 2 Term. Rep. 760. Bicknell v. Keppel, 1 New Rep. 20.

Grimlce, for the motion. Hunt and Parker, contra.

In the case before us, the facts were submitted to the jury, with a direction from the judge, that the rule now laid down should govern, and I think the determination a correct one. The defendant referred the examination of her accounts to her agent, or to one acting as mutual agent, by which she is to be understood as saying, I know that there was a debt, though I thought it paid, whatever shall be due, I will pay.

The motion is dismissed.

Bay, Nott and Johnson, JJ., concurred. 
      
       See Executors Gray v. Kernahan, 2 M. Const. Rep. 67 ; Rowcroft v. Lomas, 4 Maule & Selwyn, 457; Gibbons v. McCasland, 1 Barn. & Ald. 692-3; Swan v. Sowell, Ib. 760. R.
      
        Young v. Monpoey, 2 Bail. 278; 6 Rich. 123; 1 McC. 322, and note; 3 McC. 552; 4 McC. 95.
     