
    Elias Westbrook vs. Lawrence Beverly et al.
    Under the act of 1844, which enacts that no promise or acknowledgment, either express or implied, shall operate to revive at law any action or cause of action from the bar and limitation contained in the act, unless such promise be in writing, and signed by the party to be charged thereby ; with the proviso, that the promise or acknowledgment to save the bar may be made without writing, if it be proved that the very claim sued on was presented and acknowledged to be due and unpaid; it was held, where a suit was instituted in March, 1847, upon an account due in January, 1842, and a witness proved that shortly before the suit was brought he presented the account to the defendant, who said there was one item in it he did not recollect, he would see his brother and see the plaintiffs, and make some arrangement about it, that the account was not, by this proof, taken out of the statute; the proof did not establish an acknowledgment that the account was due.
    It seems that after an account is due, if the debtor acknowledge its correctness and promise its payment, when presented to him, and suit be instituted thereon at any time within three years from the time of the acknowledgment and promise, the plaintiff will be entitled to recover ; but if the three years from that period are allowed to elapse without suit, that promise would avail the creditor nothing.
    In error from the circuit court of Oktibbeha county; Hon. Francis M. Rogers, judge.
    Lawrence Beverly and Casey A. Outlaw, on the 22d of March, 1847, sued Elias Westbrook upon an open account for sixty-three dollars and sixty-three cents, due in the year 1841. The defendant plead as follows: “ Defendant pleads non-assumpsit and the statute of limitations in short, by consent.
    W. S. Featherston, att’y for defendant.”
    The plaintiff replied: “Replication and issue in short, by consent. C. F. Miller, plaintiffs’ att’y.”
    On the trial, the plaintiffs proved that a short time before the commencement of the suit, the witness, as agent of the plaintiffs, called on the defendant and presented the account sued on to him; the defendant said there was one item in the account that he did not recollect to have procured. The witness requested the defendant to close the account by note, which the latter refused, but stated he would see his brother and Mr. Beverly, one of the plaintiffs, and make some arrangements about it. This witness also proved that the account was due on the lst'of Jauuary, 1842.
    The plaintiffs also proved by another witness that he presented the account in January or February, 1843, to the defendant, who said the account was correct, and promised to pay it.
    On this proof, the jury found for the plaintiffs; and a new trial being refused, the defendant sued out this writ of error.
    
      Featherston, for appellant.
    
      C. F. Miller, for appellees.
    The verdict is sustained by the law and evidence. The late act on the subject of limitations, (see acts of 1844, p. 108, sec. 16,) requires either a promise in writing, or that the very claim sued on shall be proved to have been presented, and acknowledged to be due and unpaid. The latter alternative, the record shows, was carried out in this case. The very claim in suit was presented, acknowledged to be just, and unpaid, and an agreement or promise to arrange it.
    According to the best authorities on this point, a direct and positive promise is not essential to prevent the bar. 13 Johns. R. 288; lb. 510; 17 lb. 330; 15 lb. 3. “It seems that the acknowledgment of the debt, unaccompanied with a protestation against the payment of it, is evidence sufficient for the jury to presume a new promise.” Chitty on Con. 316; Starkie on Evidence, tit. Limitations, and cases there collected and referred to.
   Mr. Justice Clayton

delivered the opinion of the court.

This suit was brought in March, 1847, upon an open account, due 1st of January, 1842, to which the statute of limitations was pleaded.

The evidence was, that in January, 1843, a witness presented the account to the defendant, who acknowledged it to be correct, and promised payment. There was proof, by another witness, that a short time before this suit was commenced, he presented the account to the defendant, who said there was one item in it he did not recollect; he refused to close it by note, but said he would see his brother, and see the plaintiffs, and make some arrangement about it.

If the suit had been brought within three years after the first presentment of the account, no doubt could exist as to the right of recovery. Not having been so brought, the plaintiff's now can-derive no advantage from that promise. Does the second promise take the case out of the statute 1

The act of 1844 provides, that all actions upon any account, shall be commenced and prosecuted within three years next after the cause of action shall have accrued. It also enacts that no promise or acknowledgment, either express or implied, shall operate to revive at law any action, or cause of action, from, the bar and limitation contained in the act; unless such promise be in writing and signed by the party to be charged thereby: provided, however, that the promise or acknowledgment to save the bar, may be made without writing, if it be proved that the very claim sued on was presented and acknowledged to be due and unpaid.” Hutch. Code, 832, sec. 10, 16.

The second promise set out in the evidence, does not come up to these requisitions of the statute. One of the charges was disputed; the defendant refused to give his note, but said he would see his brother and the plaintiffs, and arrange it. The probable object of his wish to see his brother, was to ascertain the correctness of the item which he did not recollect. It did not amount to an acknowledgment that the account was due, and did not justify the verdict and judgment in favor of the plaintiff's.

The judgment is therefore reversed, and a new trial awarded.  