
    David Broddie vs. W. B. Johnson.
    1. Assumpsit. Contract. Consideration. Where a contract for rent is made with A, and the tenant promises to make his payment to B, such promise to B. is void for want of consideration, unless it appears that he were entitled to receive the rents on the contract of A.
    2. Statute of Limitations. Debt barred by. What hind of promise will remove the bar. A promise to have the effect to revive a debt barred by the statute of limitations, need not admit that a specific sum is due, but there must be a promise to pay something or an acknowledgment that something is duo in reference to a particular subject matter. If there be no express promise, but a promise to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. Bell vs. Morrison. 1 Peters 362.
    3. Same. An agreement to submit the matters in dispute to a third party, and to pay whatever such third party may find to be due, is not such a promise as will make the party liable for a debt barred by the statute of limitations.
    4. Same. Conditional promise. Mxample. To say 1 ‘if I owe you any thing I will pay you” — or, “I do not owe you any thing, but I will refer the matter to A. B. and if he says I owe you, I will pay,” does not revive a debt if one in fact did exist, because the promise or acknowledgment is conditional not only as to the amount, but as to any indebtedness at all. But to say “I admit I am indebted to you,” in reference to a certain matter, “but not to the extent you claim, and will leave it to A B and will pay the amount when thus ascertained,” would be sufficient.
    MOM MONTGOMERY.
    This was an action of debt for rent upon a letting by pa/rol, instituted on the 19th of April, 1850, in the circuit court of Montgomery. The defendant plead nil debet and the statute of limitations. It appears that Broddie in the year 1840 or 1841, took possession of a tract of land in the county of Montgomery, under a contract with L. W. King and as his tenant. King claimed title to the land, and Broddie remained in possession about two years. Some years afterwards Johnson claimed the rents. Broddie alleged, that by the contract with. King, he was to pay the rents by making improvements on the place, which he had done to an amount exceeding the rents in value. Johnson and Broddie agreed to refer the matter to McClure, who should decide “whether Broddie should pay any money?” The parties neglected to appear and make proof, and McClure made no award. After this suit was brought by Johnson against Broddie, the latter stated to McClure, that, “if Johnson would take the suit out of court he would let McClure settle it.” The Court,Hon. W. ~W. Peppee presiding, charged the jury that, “the first enquiry would be: Was there a renting? and if so, was the rent money due the plaintiff for more than three years before the bringing of this suit? That if plaintiff delayed for three years after the rent was due, to bring his suit, he could not recover unless the defendant' had made such a promise to pay' as would take the case out of -the statute of limitations. If the jury should find from the proof that the parties agreed to refer the matters or claims to a third person to settle for them, and mutually agreed to pay the one to the other, as the result might determine, whatever might be found to be due by such third person; or, if they found that defendant had promised to pay the plaintiff whatever might be found due him, that would prevent the operation of the statute of limitations, provided' that it was within three years before the bringing of this suit; and that no precise sum need to have been mentioned, but 'a general promise to pay whatever ■was, or might be found to be due, would be sufficient to prevent the application of the statute of limitations.” He further charged, “that it would make no difference whether the defendant rented the premises of, and was the tenant of King, provided they should find from the proof that he had promised to' pay the plaintiff the rent in either of the modes pointed out in the charge.” There was verdict and judgment for the plaintiff below, from which defendant appealed in error to this court.
    Robt. Bailey and Dudley, for the plaintiff in error.
    Shackleford and Humphrey, for the defendant in error.
   CaeutheRS, L,

delivered the opinion of the court.

This is an action of debt for rent. The defense is rested upon two grounds:

1. That the renting was from King, who agreed that the rents should be paid in repairs, which had been made; and if not, he was liable to King, and not to Johnson.

2. That the claim was barred by the statute of limitations.

Hpon the first point, the Court charged, “ that it would make no difference whether the defendant rented the premises of, and was the tenant of the plaintiff, or whether he had rented the place of King, and was the tenant of King, provided they should find from the proof that the defendant had promised the plaintiff to pay him the rent, in either of the modes pointed out in this charge.” This is not correct, without qualifications. In the case stated it would have to appear that Johnson was entitled to the rent upon tlie contract of King to make a promise to pay Mm binding; otherwise, a promise to pay him wonld be void for want of consideration.

Second. As to the proof necessary to take a case out of the statute of limitations, his Honor charged: “If they should find from the proof, that the parties agreed to refer their matters or claims to a third person to settle for them, and mutually agreed to pay one to the other, as the result might determine, whatever might be found to be due by such third person; or, if they found that the defendant promised to pay the plaintiff whatever might be found to be due him, that would prevent the operation of the statute, provided it was within three years before suing; and that no precise sum need have been mentioned, but a general promise to pay whatever was or might be found to be due, would be sufficient to preveirt the application of the statute of limitations.”

We think this charge cannot be sustained as the law of this State. Something more is required to revive a debt barred by the statute of limitations. There must be an express, unconditional promise to pay, or such an acknowledgment of an existing debt as will imply a willingness or promise to pay it if no express promise is made. When the remedy is barred by the lapse of three years it must be created anew to sustain an action. 2 Humph., 166. This can only be effected by a distinct and unequivocal acknowledgment of the debt; (4 Yerger, 174;) by an express frmwise to pay, or an admission of an existing debt still due, which he is willing to pay. Thompson vs. French, 10 Yerg., 456. The rule is thus laid down in the Supreme Court of the United States, in Bell vs. Morrison, 1 Peters, 362: “ If there be no express promise, but a promise to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay.” This is approved in Belote vs. Wynne, 7 Yerg., 534.

In the case Hale vs. Hale, 4 Humph., 183, the law on this point was carried to its limit. But there the defendant had “admitted that he owed the plaintiff, and if he would do within one hundred dollars of what was right- he would pay him.” True, it is not necessary that a specific sum should be admitted to be due, or an empress promise to pay; but there must be a promise to pay something, or an acknowledgment that there is something due in reference to a particular subject matter. The Court say in Hale vs. Hale, “it is enough if an indebtedness be admitted in reference to a particular subject matter, and a willingness be expressed to pay such amount as may be due.” This position is further guarded by the remark that “we do not mean to say that a general admission of indebtedness will authorize the plaintiff to prove any accounts he may produce, however varied in their origin, and remote from the meaning of the party making the admission. The admission must refer to a particular subject matter of indebtedness, so that if the sum be not specified in the admission it may be made certain by the proof.” We yield to the authority of this case, but it certainly goes as far as can be justified upon principle, to say the least. But it does not sustain the charge in the case before us. That assumes the law to be, that an agreement to refer the matters in dispute to a third' person to settle, and to pay the one to the other, whatever he might determine to be due, without the acknowledgment that any thing was due, would take the case out of the statute, or revive a debt already barred. By reference to the evidence of McClure it will be seen that the defendant insisted that he did not owe anything, but agreed to pay if the referee decided otherwise. The referee did not act upon'the case. The more general proposition in the charge, “that if they found the defendant promised to pay. the plaintiff whatever might be found to be due him,” is likewise erroneous; because, first, there is no reference to any particular transaction, or subject matter; and, second, because there is no admission that any thing was due.

To say, “if I owe you any thing I will pay you,” or, “ I do not owe you any thing, but I will refer the matter to A B, and if he says I do I will pay,” does not revive a debt, if one in fact- did exist, because the promise or acknowledgment is conditional, not only as to the amount, but as to any indebtedness at all. But to say “ I admit I am indebted to yon,” (in reference to a certain matter,) “but not to the extent you claim, and will leave it to A B, and will pay the amount when thus ascertained,” would be sufficient, according to the case of Hale vs. Hale.

In all such cases, the question is, whether there is a promise to pay the debt which is barred, or the acknowledgment of an existing debt, in such terms and under such circumstances as to authorize an inference that he is willing to pay it, or to imply a promise to pay it.

The judgment will be reversed, and the cause will be remanded for a new trial.  