
    
      Wm. Sims, assignee, vs. ex'or. of L. Radcliffe.
    
    If, after a note is barred by the statute of limitations, the drawer promise to pay it, such promise is a new cause of action, the old debt being the consideration; and it seems, that in an action to recover the debt, the plaintiff must declare specially on the new promise.
    The drawer of an unnegotiable note promised verbally to pay it, after it was barred by the statute of limitations; held, that such promise was a mere chose in action which could not be assigned so as to enable the assignee to maintain an action thereon in his own name.
    
      Before Huger, J. at Charleston, May Term, 1830.
    This was an action of assumpsit on a note or due bill, given by Lucretia Radcliffe to Peter Pyatt. The payee was dead, and his executrix, Mrs. Pyatt, by her indorsement on the note, as executrix of Peter Pyatt, had assigned the same to the plaintiff. The note was as follows: “ Due Mr. Peter Pyatt six hundred and fifty-three dollars. 20th August, 1816. L. C. Radcliffe.” It was indorsed thus : “ I hereby assign all my right, title and interest in the within note, to William Sims. Sarah A. Pyatt, executrix of Peter Pyatt.”
    The first count in the declaration stated the note to Peter Pyatt, his death, and the assignment to Sims by his executrix ; there were also in the declaration three money counts. The pleas were non assumpsit and the statute of limitations. The evidence was as follows: Mrs. Pyatt testified that she knew the handwriting of Mrs. Radcliffe, and the note was signed by her : u she did present the note now in suit, to Mrs. Radcliffe, about four days before her death ; Mrs. Radcliffe was then in bed sick with the country fever; at the time mentioned, Mrs. Radcliffe acknowledged the note, and told the witness to call on the Wednesday following and she would pay it.” It was agreed that Mrs.Radcliffe died in June, 1821 ; the suit was commenced in a short time after. Prior to the suit, and after the death of Mrs. Radcliffe, Mrs. Pyatt assigned the due bill to the plaintiff.
    After the plaintiff had closed his testimony, a motion was made for a non-suit, on the grounds:
    1st. That the note was barred by the statute of limitations, at the time Mrs. Radcliffe promised to pay it, and therefore, the suit could not be maintained upon that count in the. declaration which stated the noteas the cause of action.
    . 2d. Because the new promise to pay the note, was the only good ciiuse of action, and should have been specially declared upon, and could not be proved under the money counts in the declaration.
    ■ 3d. Because the new promise was not such a chose in action as was assignable, and the assignment of the note did not carry with it the new promise so as to entitle the plaintiff to sue in his own name.
    His Honor, the presiding Judge, sustained the motion, on the grounds stated, and ordered a non-suit.
    The plaintiff appealed, and moved that the non-suit be set aside, on the grounds :
    1. That the positive' promise to pay, was a reassumption of the note, as much so as if it had been written over and re-signed, and the note thus became a valid cause of action.
    2. Because the promise to pay took the case out of the statute, and left the action as if the statute had not been pleaded. It was, in effect, a waiver of the statute, and revived the remedy by admitting the existence of the right, notwithstanding the lapse of time.
    3. Because the assignment of the note carried with it the new promise as an incident.
    
      Hunt and Shand, for the motion.
    -, contra.
   Curia, per

O’Neall, J.

The opinion just delivered in the case of Reigne vs. Desportes, decides all the questions involved in this; and according to the principles maintained in that case, the non-suit. was properly ordered in this. The motion to set it aside is dismissed.

Johnson, J. concurred. 
      
      
         See this case reported in Dudley, 118.
     