
    
      Joseph Brailsford v. Wm. M. James, adm'r.
    
    Debt on account stated. — Plea, Statute of Limitations. — The sum claimed, (one hundred and eighteen dollars 76 2-3 — 100 dollars, with interest from the first of March, 1837,) arose, it was alleged, on a settlement had with the plaintiff by defendant’s intestate, who had been trustee of an estate in which the plaintiff was interested: seven years after the accrual of the cause of action, in conversation with a stranger, the intestate used the following words, relied on as an acknowledgement, to escape the bar of the statute of limitations, to wit. “Joe (the plaintiff,) need not scruple about owing me the amount, for I am owing him money on the trust estate with interest from the day of settlement, (that is the statement which H— made at my house,) and adding the interest, I owe him three hundred dollars.” — Held that the words were not sufficient to identify the debt sued on with that of which the intestate spoke.
    
      
      Before WITHERS, J. at Sumter, Spring Term, 1848.
    The action was debt on an account stated. Mathew James wag; jQ ^jg trustee of an estate in which the plaintiff was interested, and the accounts between James, trustee, and those interested in the estate were adjusted, and a decree pronounced in the Court of Equity. After the decree and with a view to correct some errors, or to make the accounts between Mathew James and the plaintiff more perfect, they stated an account 'between themselves, upon which a balance was found in favor of the plaintiff — on the back of that account was indorsed as follows: “We have examined the within account and find the same correct, and that there is due from M. James to Jos. Brailsford the sum of one hundred and eighteen dollars, 76§ cents, with interest thereon from the first day of March, 1837, and that the same be filed among the papers and become a part of the record in the case above stated; this 4th March, 1837, (signed) J. Brailsford, Mathew James.” The case stated was Jos. and Theo. W. Brailsford, and W. M. Fel-der' and wife 'v. Mathew James, trustee.
    ■ -The action was barred by the statute of limitations, which was pleaded, upless what Mr. M. James said to Doctor W. M. Feldef in February, 1844, about a fortnight before his death, should have the effect of removing that bar. It appeared that about the time stated, the plaintiff was studying medicine under W. M. Felder, and a conversation had occurred between Felder and M. James, in January, 1844, as to the plaintiff’s resorting to a course of lectures, or giving up the study of medicine. “In February, 1844, (said Doctor Felder) the Monday week before his death, Mr. Mathew James asked me if Brailsford had given out the study of medicine, and told me to tell him he must not think of it — that he could not then raise the money to send him to the lectures, but he would next fall. We calculated the amount required for two courses of lectures — and he said Joe need not scruple about owing him the amount, for he was owing hi/m money on the trust estate, with interest from the day of settlement — that is, the settlement which Hemphill made at his house — run over the interest in his head, and said he owed him $330.” This conversation occurred near 7 years after cause of action sued upon accrued.
    The question was whether the acknowledgment was sufficient to avoid the bar of the statute.
    The Circuit Judge charged the jury that there must have been an acknowledgment by James that the specific debt sued for was due and owing, and also a promise to pay it, or language used clearly equivalent to a promise to pay; that after the statute had barred a claim, a mere naked acknowledgment that the debt was owing, with nothing more, was not enough to answer the plea of the statute.
    A good deal of testimony was oifered by the defendant going to show that Mathew James was extremely kind to plaintiff, furnishing him with every thing except his boarding, guarding his interests and property from the effects of his own improvidence, by attending sheriff’s sales, &c. So it also appeared that after the date of the cause of action, a suit in Equity, much litigated, arose, affecting the estate of Brails-ford; with regard to which the plaintiff, with Theodore W. Brailsford and Felder and wife, agreed to be accountable for two hundred dollars towards compensation of counsel to be employed by M. James. He did employ F. J. Moses and T. J. Withers, and paid each a fee, but it did not appear how much. A schedule of plaintiff’s, filed and sworn to on 2 January, 1847, under the Insolvent debtor’s act, was produced, in which no reference was made to the demand now sued for — but the plaintiff, on the occasion when he applied for his discharge, was examined on this matter by the creditors’s counsel, and was nevertheless discharged.
    The jury returned a verdict for the defemffiafc»»ffl&N&!>^ plaintiff appealed, on the ground: ^4, ^IVV
    That his Honor erred in charging the jun| ÍKht, to revivé® a debt already barred by the statute of limita! <ms_(henunusLy be an express promise to pay it; and that ‘/aaaineqSlwAaV^\ admission that the debt is still due and unmid, unaccomm-nied by any expression, declaration, or qualmclíüi^BnfiimY. tive of an intention to pay,” is insufficient fow^hat purpose^/
    
      Richardson, .for the motion.
    
      TV F. DeSaussure and Moses, contra.
   Withers, J.

delivered the opinion of the Court.

The action was founded on what was alleged to be an account stated, and the sum claimed was one. hundred and eighteen dollars 76§ cents, with the interest from the 1st day of March, 1837. This balance arose on a settlement had with the plaintiff by the defendant in reference to a suit in Equity, wherein the plaintiff was one of the complainants, against M. James, deceased, as trustee.

The acknowledgment relied upon to escape the bar of the statute of limitations was made to one Wm. M. Felder, who was in conversation with the defendant’s intestate in February, 1844, about the question whether the plaintiff should attend medical lectures — and the language used is reported by the said witness as follows, to wit, “ Joe need not scruple about owing me the amount, for I am owing him money on the trust estate, with interest from the day of settlement (that is the statement which Hemphill made at my house) and adding the interest I owe him $330.”

° ' MS. cases t ivrl847- - 2 McMul.505.

The question is, does this identify the debt sued on with that of which M. James, deceased, spoke? Many examples of what the rule is on this subject may be found in our books ; gome of iater qate may |3e consulted in the cases of Cooke v. Ashe, Chambers and Campbell v. Sims, and Williamson v. King, adm'r. of Bacot. It is said in the last case cited, the acknowledgment must be of some specific demand — that “the promise should be so explicit that the liability could be made aPParent by stating the terms of the undertaking in a declar-atj011i 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.”

In the case of Chambers & Campbell v. Sims, Sims the deceased was'spoken to in Columbia about the demand of the plaintiffs and he said he was in a hurry then, but he would be down soon again, and would then settle by giving a note or by paying the cash. It did not appear that the plaintiffs had more than the demand sued upon — yet it was held not to be sufficiently identified.

The statement of the foregoing cases is enough to shew that the doctrine established by them must prove fatal to the plaintiff in the case before us.

As to the proposition laid down on the Circuit, to wit, that after the statute had barred a claim, a mere naked acknowledgment that the debt was owing, with nothing more, was not enough to answer the plea of the statute; there must be also a promise to pay, or language used clearly equivalent to a promise to pay — the Court is not now prepared to speak with authority. For that reason a discussion of the subject here is also declined. This case may well be disposed of on the other ground hereinbefore presented — not to insist upon the circumstance that the conversation was with a stranger, and that if it was meant to be a promise to pay at all, it was not made to the plaintiff.

The motion is refused.

The whole Court concurred.

Motion refused.  