
    Susanna Newcomb, assignee, vs. Daniel Neil.
    
      Defendant on being shewn a note of hand, signed by himself, did ■ not deny the hand, writing, but said that his brother, ivho it seems had held and transferred the note, owed him money, and he would not pay a cent of it. Held not a sufficient acknowledgment to take the note out of the statute of limitations.
    
    This was an action on a due bill or note, drawn by defendant in Boston, 10th. October, 1802, for $394 87, in favour Win. M'Neil h Son, and assigned to the plaintiff. The hand-, writing was admitted, but defendant pleaded the statute of limitations; and to take the case out of the statute, a new undertaking was alleged by the plaintiff. To prove this, the deposition of Samuel G. Sargent was taken in Boston; who deposed that hé had called on defendant, then in Savannah, with the papel-ón which this action was brought, and informed him that he had a demand against him, at the same time exhibiting the paper to him; that the defendant said he would not pay a cent, because his brother, who it seems had transferred this note, had received all his father’s property, and if the account were settled, he would owe him money. The witness further deposed, that in this conversation with the defendant, he did not deny his handwriting, after looking over the paper; but did not recollect that he promised to pay it; adding however, if the accounts-Were adjusted and settled, money would be due him.
    Mr. Justice Richardson, who presided in the circuit court, before which the case was tried, charged the jury that it did not appear to him that the testimony offered had taken this case out of the statute of limitations, as no explicit acknowledgment of the debt had been proved by the witness; and that to take a case out of the operation of the act, pleaded in bar of this action, some express promise, or at least an acknowledgment of the debt, should have been proved. The jury accordingly found a verdict for defendant.
    The present was a motion for a new trial, on the ground of mis-direction on the part of the presiding judge.
   The opinion of the court ivas delivered by

Mr. Justice Bay.

Upon due consideration of this case,.! am of opinion that. ihe charge of the presiding judge to the jury was perfectly cor* reel and proper. Formerly it was held in thisstate, that to take a case barred by the statute of limitations oat of-the statute* there must be a new promise or undertaking, and that a bare acknowledgment of a debt, without such promise, was not sufficient. But in the case of Roderiquez, vs. Fronte, tried in January term, 1808, before the late Mr. Justice Trezevant, who bad charged the jury that an acknowledgment of a debt, without such new promise, was not .sufficient for that purpose, the verdict for the defendant was set aside and a new trial ordered by the constitutional court; on the ground thaji an acknowledgment of a subsisting debt, still due and unpaid, would taken case out of the statute of limitations; because the statute goes apon the presumption that the debt has been paid and satisfied, and an acknowledgment therefore that the debt has not been paid will rebut such presumption; 4, East. Rep. 599, 604; 1st. Esp. 157; Peake, 93; and many cases have been determined since upon the same.principles.

With regard to the nature and import of this promise, the cases in the English books are manifold and some of them contradictory; and in general,.they appear to.be left to the inferences, and constructions of juries, according to their ideas of the subject, without any clear or definite rule to govern them. It appears to me therefore, that the rule laid down by the presiding judge in tills case, is an exceeding good one; that there must be some clear and explicit acknowledgment of a subsisting debt, still due to the plaintiff, to take it out of the statute; as nothing can be more precarious than the fluctuating and uncertain opinions of juries, drawn from circumstances, without any fixed or certain rule to govern their verdicts. 1 am there-; fore clearly of opinion that the rule for a new trial in this case should be dismissed and that the verdict of the jury should remain uuimpcachcd.

JYott, Gantt, and Huger, Justices, ebneurred.  