
    Winyaw Indigo Society vs. David Kidd.
    An action brought on a noto barred by tbe statute of limitations, cannot be sustained by evidence of a promise to pay, made after the action was commenced.
    BEFORE RICHARDSON, J„ AT GEORGETOWN, FALL • TERM, 1837.
    This was an action on a promissory note for one hundred and nine dollars, payable one day after date, to Eleazer Waterman or bearer, and transferred to the Winyaw Indigo Society. The action was commenced at Spring term, 1837; to this, the statute of limitations was set up as a defence, and the plaintiff replied a subsequent promise. To prove this, a witness testified that the defendant called on him after the writ bad been served, and said that be could owe nothing, not being a member of the society. The witness then informed him that the suit was not for arrears, but a note transferred by Waterman. The defendant then said, “that alters the case, and if a note, I will pay it.” The note was not shown to the defendant at the time.
    
      The defendant’s counsel moved for a nonsuit, on the ground, that the assumption to the witness, after action brought, constituted no cause of action.
    The motion was overruled, and the case went to the jury under the charge of the presiding judge, who stated to them, that inasmuch as the statutory bar was complete at the time of the commencement of the action, the assumption to pay the note must have been express, and have applied to the identical note sued on, or else the bar remained and estopped the action; that if the promise was express and specific, it was as binding and efficacious if made after suit, as if made before.
    The jury found for the plaintiff’ and the defendant renewed his motion for a nonsuit in the Court of Appeals — and should that fail, for a new trial, on the following grounds:
    1st. That as the testimony proved that no cause of action existed at the time of suit instituted, the motion for a nonsuit should have prevailed.
    2d. That there was no testimony to identify this note with the acknowledgment made by the defendant. '
    Bailey, Dawson and Brewster, for motion.
    Cohen, contra.
   O’Neall, J.

In the case of Reigne, assignee of Metivier vs. the Executors of Desportes, who was the Executor of Doyen, decided at this place in March, 1832, it was ruled that a debt barred by the statute of limitations, was merely the consideration of the promise to pay it, made after the bar of the statute, and that such new promise was tlie cause of action. The question whether the old debt could be considered as revived, and set up by the new promise, was in that case fully discussed, and it was conclusively shown that it could not.

In it, the distinction was taken between a case in which the new promise was made by one, and to the other of the parties to the contract — and that, in which the promise was by or to other parties. In the first case, it is not necessary that the declaration should count specifically upon the new promise, for it corresponds with the allegata, of the usual counts, and could, therefore, be given in evidence under them. But when the promise is made by, or to a party not to the contract, it is necessary that it should be declared upon.

In this case, the note was payable to Waterman or bearer, and the new promise made after the note was barred by the statute, was to the Winyaw Indigo Society, to whom Waterman had transferred it. According to the principles of the case which I have cited, to entitle the plaintiffs to recover, it was not necessary to declare upon the new promise. Still, however, the plaintiffs cannot recover on the proof, for, although they are not required to declare on the new promise, yet they are required to show a cause of action when the writ bears date This could not be done by the proof of a promise made subsequently — such proof, in strictness^ was inadmissible, but when not objected to, and r^^jsSfFWjjn. this case, it would only show, that at t^.:3^iptn^uSel¿#.t of the plaintiffs’ action, no cause of the FÍctioí-' existed. f To permit a recovery on such proof, woiildJbe\&í>out as,vrea%Mjble as to permit a recovery on a note-n% d,ue,; wtíefr '¿he miaintifts’ action was commenced.

The motion for a new trial is granted. 
      
       See case following this.
     
      
       A plaintiff may give in evidence, a promise after action brought; 2 Burr., 1099; 2 B. & C., 826, S. C.
     