
    Crowder vs. Nichol.
    If there be no express promise to pay a debt barred by the act of. limitations, but a promise is to be raised by implication from the acknowledgement of the paity, such ac-knowledgement ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay.
    Where a party agreed to assign anote on a third person without recour8Gi and the note being lost or mislaid, he made oatli before a justice of the peace, that he had lost or mislaid the note, (which probato however did not state to whom the note was payable,) and transferred this probate to tlie plaintiff belo.w: Held, that an agreement or statement made by him, when applied to, to amend the probate, that he would “fix or arrange it,” wasnotsucli an admission of an existing debt, so as to prevent the operation of the act of limitations
    This is an action of assumpsit brought by Nichol vs. Crowder, on the 22d March, 1836. The pleas are non-assump-sit and stat. lim. The proof is, that Nichol sold to Crowder a stud horse, for which Crowder was to give him a note on Jesse M. and Charles Wade, for one hundred and fifty dollars. The contract was made in 1830. Crowder was to take the stud without recourse upon Nichol, and Nichol was to take the note without' recourse upon Crowder. Crowder instead of transferring the note, went before a justice of the peace and made oath that he had lost or mislaid the note, and transferred the probate to Nichol. In this probate Crow-der }iad not stated to whom the note was made payable. Shortly after Crowder removed to Mississippi. In the fall of 1833, Nichol sent the probate to Crowder, and requested him to alter or amend it, so that it would show to whom the jiote was payable, but he refused to do so, saying that he was going to Tennessee in the spring, and that he and Nichol would “fix it or arrange it.” When Crowder came up in the spring, the plaintiff asked him to make the alteration in the probate, but Crowder refused, saying he thought it was good enough.
    The jury found a verdict for the plaintiff of fifty dollars. Motion for a new trial overruled, and appeal in the nature of a writ of error to this court.
    
      R. J. Meigs, lor plaintiff in error.
    
      J. S. Verger, for defendant in error.
   Reese, J.

delivered the opinion of the court..

In the case of Bell vs. Morrison, 1 Peters. 262, the supreme court of the United .States, lay down this principle as .applicable to the statutes of limitations, “if there be no express promise, but a promise is to be raised by implication of law from the acknowledgement of the party, such acknowl-edgement ought to contain' an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay.” The expression of the plaintiffin error in this case to the agent of the defendant in error, when the latter asked him to amend the affidavit spoken of in the proof, £hhat when he came to Tennessee he would fix it, or arrange it,” is not an; unqualified and direct admission, nor any admission of a previous subsisting debt or liability, and much less was it an acknowledgement of a debt or liability then existing and “which he was willing to pay.” The conversation was of the affidavit asid of its amendment, and the expression had relation to that. The principle above referred to, is stated by the judge, who delivered the opinion of the court in the case of Belote vs. Wynne, 7 Ver. 542, and received in that case, the decided sanction of this court. In the case before us there was no evidence whatever to sustain the finding of the jury on the plea of the statute of limitations, and the circuit court should for that reason have granted a new trial. Let the judgment be reversed and the case sent back to be again tried.

Judgment reversed.  