
    Edward W. Bounetheau ads. Administratrix I. Johnson.
    Assumpsit in open account, for medical attendance. Pleas, statute of limitations, and general issue.
    Tried in May Term, 1835, before his Honor Judge Earle. Verdict for plaintiff.
    The declaration contained a count for services and work as a phy. sician, surgeon and apothecary, medicines, &c.; 2d, quantum meruit; and 3d, insimul computassent. The debt was barred by the statute of limitations ; to avoid which, the following proof was made. Mr. Sparkman, agent lor the plaintiff intestate, in January or February, 1833, presented the account to defendant, who replied, “ I have also an account against Dr. Johnson, which 1 will discount against Iris', when I get mine made out, and will settle with you.” Mr. Sparkman replied, “prepare your account, and 1 will settle with you in any way, as I have authority. He afterwards found in the hands of D'-. Johnson an account in the ha ndwriting of defendant, similar to that now produced, which was proved by Mr. M'Cready, to have been delivered to him by Dr. Johnson, in the spring of 1833. On this evi. dence I thought the jury might well find for the plaintiff, if they were satisfied that there was an admission of the debt, and a promise to settle it; it seemed to me that defendant receiving plaintiff’s account and rendering his own, after his declaration to Sparkman, was suffi. cient proof to sustain the court on the count insimul computassent. The jury found for the plaintiff, allowing defendant the amount of his demand.
    
      From which verdict ihe defe.ida -t appeals on the following grounds :
    1st. That the evHo..ce offered was not sutficie it to revive the plui tiff’s rig'il of iic'ion, and to take the case out of the statute.
    2.1. That ihe verdict is contrary to law and evidence.
   Johnson, Justice.

This case falls very clearly within the rule laid down in You 'g vs. Mompoey, 2 Bailey 280. The evidence adduced in support of the new promise, imports, I think, not only an admission of a subsisting debt, but also a promise to pay. The proposition of the defendant to discount his own account against the demand, is in itself a distinct concession of his liability to pay it, and his declaration that he would “settle with” the plaintiff’s agent when his account was made out, is in common parlance generally substituted for a direct promise to pay, and as used here, would scarcely admit of any other construction. The verdict is therefore right.

There is, I am aware, a very general prejudice against a defence founded entirely on the statute of limitations, and there is danger that juries will be disposed to infer a new promise from Very slight circumstances, and thus render the rule inoperative 5 but the corrective is iu the hands of the court, and by keeping the principle constantly in view the evil will be avoided.

Motion dismissed.

Signed,

DAVID JOHNSON.

We concur,

HENRY W. DESAUSSURE,

J. JOHNSTON,

J. S. RICHARDSON,

A. P. BUTLER.

JOHN B. O’NEALL,  