
    John G. Brody, Plaintiff in Error, v. James W. Doherty, Administrator, &c., Defendant in Error.
    1. Statute oe limitations : presentment. — In order to take a claim out of the bar of the Statute of Limitations, it is not necessary that it be actually presented to the view of the debtor: it is sufficient if the identical claim sued on, be present at the time of the acknowledgment and promise, and ready to be exhibited if required, and so distinctly and clearly presented to the mind of the debtor, that he recognizes it without possibility of mistake as to identity. Adams v. Terry, 26 Miss. 504. „
    2. Same : promise to save the bar. — A promise to “ settle” the claim at a future day, accompanied by an acknowledgment of its justice, is a promise to pay it, within the meaning of the Statute of Limitations.
    IN error to the Circuit Court of Tallahatchie county. Hon. Wm. L. Harris, judge. ¡
    
    
      On the 24th day of April, 1854, the defendant in error, as administrator of one James Doherty, deceased, sued the plaintiff in error, upon a bill single for $750, due on the first day of November, A. D. 1842, and recovered judgment in said court for the full amount of said bill and interest. A motion for a new trial was made, but overruled; to which a bill of exceptions was taken, and a writ of error sued out to this court.
    The pleading and evidence are set out in the opinion of the court. It is only necessary here to insert the instructions given, and refused by the court below. On behalf of the plaintiff in the court below, the following instruction was given:—
    1. “ That the actual presentation of the identical claim sued on, by the actual exhibition of the note to defendant, is not necessary; but if the jury believe, from the evidence, that the note sued on, was fully presented to defendant’s mind, and knowledge of the claim sued on, was brought home to defendant in this manner, and that upon that presentation to his mind, he promised to pay it, they must find for plaintiff.”
    2. “ That a presentation to the mind, through the medium of the senses, other than the eye, is a good presentation, within the meaning of the statute.”
    The defendant asked for the following instruction :—
    
      “ That if the jury believed from the evidence, that when the note sued on was brought to the knowledge of defendant, and he made the promise relied on by plaintiff, said note was barred by the Statute of Limitations of seven years, then to remove the bar of the statute, a promise in writing must be proved, and without such written promise they must find for defendant.”
    Which the court refused to give.
    The defendant then asked the following: — ■
    
      “ To make a parol promise sufficient to take a case out of the Statute of Limitations, or to prevent the bar of the statute, the very claim sued on must be presented; and if such claim was not presented or exhibited to defendant, a parol promise to pay it will not bind him. ”
    Which the court refused to give as it was, but gave it with the explanation in reference to tbe presentment, included in tbe ins tractions for plaintiff.
    
      D. Shelton, for plaintiff in error,
    Cited and commented on tbe following authorities : — „
    1. That tbe promise was not sufficient. 5 S. & M. 564 ; 11 lb. 419.
    2. There was no presentment. Hutch. Code, 832.
    
      I. M. Henry, for defendant in error,
    Argued tbe case orally, and filed an elaborate written argument, reviewing tbe testimony, and cited and commented in tbe following authorities. Davidson v. Morris, 5 S. & M. 364; Orisp v. Thornton, 14 lb. 52 ; Adams v. Terry, 26 Miss. R. 499; How. & Hutch. Code, 413.
   HaNDY, J.,

delivered tbe opinion of tbe court.

This was an action brought by tbe defendant in error against tbe plaintiff, to recover tbe amount of a bill single executed by tbe latter, and payable to tbe intestate of tbe defendant in error.

Tbe defendant below pleaded tbe Statute of Limitations of • seven years; to which tbe plaintiff replied an acknowledgment by tbe defendant that tbe debt was due and unpaid, and a promise to pay it, within seven years before the institution of the suit,' and upon this issue tbe case was tried.

In support of tbe issue on tbe part of tbe plaintiff, a witness was introduced, who stated, that in September or October, 1853, be called on tbe defendant to pay tbe note, and tbe defendant said that be remembered tbe note well, and bad expected tbe witness to call upon him before with tbe note, and was surprised that be bad not done so, and also stated what tbe note was given for. Witness bad tbe note with him at tbe time, in bis pocket, but thinks be did not take it out. Tbe witness mentioned tbe amount and date of tbe note, and tbe defendant fully recognized tbe identical note sued on, but said be bad bought a judgment against plaintiff’s intestate, which be kept as a set-off against tbe note. When asked at tbe time, by witness, to show him tbe transcript of the judgment, he excused himself, by saying that it was not convenient for him to find it, as it was among his papers. Witness staid all night at defendant’s house, and next morning asked him to show him the judgment. He declined again, and said the truth was, that he had a plenty of property, but no money; but that he was going to Tennessee next spring, and that he would call then upon witness and settle the note, as he would have a plenty of money. He further stated, that he had told the defendant the evening before, that if he had set-offs, and they were legal, he would allow them; that the defendant asked the witness if he had the note with him, and promised to settle it, as above stated; that he never presented any set-off, and has never paid the note; and that there was no other note in existence-between the parties.

The question for consideration is, whether this testimony shows a sufficient acknowledgment or promise to pay the debt, to take the case out of the bar of the statute. The case is different from any heretofore before this court in its circumstances, and it presents the question, whether any other presentation of a note than the actual exhibition of it to the view of the party sought to be charged, accompanied by a promise to pay it, will be sufficient to prevent the bar of the statute.

In Adams v. Terry, 26 Miss. 504, the rule is thus stated by this court: “ The words presentation of the very claim,’ clearly show that the acknowledgment was required to be made under such circumstances, as that the claim acknowledged could not be misunderstood.” It was intended that the demand, in the form and of the tenor in which it was made, should be shown to the party, so that he might have knowledge of it, and act understandingly in reference to it, and that witnesses might be able to say whether it was that very claim which he acknowledged to be due.

Under this rule, it is necessary that the claim should be present when the promise or acknowledgment is made, and that the promise should be made with a full knowledge of that fact and of the identity of the claim; for otherwise it would be doing violence to the language of the statute, .to hold that the claim had been “presented.” But is it necessary that it should be actually exhibited for the inspection of the party, when he is informed, and the fact is, that tbe person demanding payment has tbe note present at tbe time, and be bas full knowledge of its contents, and thereupon promises to pay it ? We tbinb not. He is apprised of tbe presence of tbe claim, and bas tbe same opportunity to demand an inspection of it, as if it were shown to him in such manner that be could not read it, which would doubtless satisfy tbe language of tbe statute. By promising to pay a claim so presented, be waives tbe production of it, and acknowledges its identity. It is analogous to a tender, in which, though tbe money is required to be produced and exhibited to tbe party to whom it is tendered, yet this may be waived, by a refusal to accept it when it is proposed to be paid, and this will be a good tender.

In this case tbe note was present when tbe demand and promise were made, and tbe defendant was apprised of it, and of tbe date and amount of tbe note; that being tbe only note between tbe parties.' There was, therefore, no possibility of mistake, either by tbe defendant or tbe witness, in relation to tbe debt, and tbe case cannot be within tbe evils intended to be prevented by tbe statute.

Was tbe promise or acknowledgment of tbe defendant, then, sufficient to save tbe bar ?

It appears, that at first tbe defendant claimed to have a set-off against tbe claim, but upon being urged to produce it, be stated that tbe truth was, be bad not tbe money to pay it then, but that be would call and settle it tbe next spring, as be would then have plenty of money. This is a plain admission that be bad no set-off against tbe claim, and an acknowledgment of its justness. He could not, therefore, have meant by tbe term “settle,” that be would j)ay tbe debt by means of a set-off. On tbe contrary, be said that be would settle it in tbe spring, when be would have plenty of money, which is capable of no other just understanding than that be would settle it with tbe money which be would then have; which is nothing less in substance, than a promise'to pay it in tbe spring.

Tbe instructions granted by tbe court below, and tbe judgment rendered, are in accordance with tbe foregoing views, and tbe judgment is affirmed.  