
    *The Administrators of Wm. Patton vs. John Magrath.
    
    The admissions by the defendant, within two years from the commencement of the action, that the cotton of the plaintilFs intestate was shipped on board of his steamer, that it had been destroyed by fire, and that the controversy as to his legal liability was still pending, was held not to be a sufficient admission of his liability, on which the law would raise an implied promise.
    The cause of action in this case accrued on the 3d December, 1832, and suit was brought by the plaintiffs intestate in May, 1833, and abated, before it was tried, by his death. In March, 1835, suit was renewed by the plaintiffs, and at February Term, 1839, of the Appeal Court, a nonsuit was ordered. In April following, this suit was commenced: Held that the statute of limitations was a bar to plaintiffs recovery. That this suit could not be connected with either of the former cases.
    Before O’Neall, J., at Charleston, May Term, 1840.
    This was an action against the defendant, as a common carrier, for the value of fourteen bales of cotton, shipped on board the steamer Augusta, Captain Brooks, whereof the defendant was, at the time, owner. The cotton was shipped at Augusta, and destined for Charleston, but was burned on the 3rd of December, 1832, at Steele Creek, on the Savannah river, on board one of the lighters accompanying and in the employment of the steamer.
    The bill of lading was dated 30th November, 1832. After some interval, the defendant was called on to pay for the cotton as a common carrier, and on his refusal, a suit was instituted at May Term, 1833. Before this suit was tried William Patton died, and administration was taken out on his estate by the plaintiffs. On the 1th March, 1835, plaintiffs’ attorney was directed to renew the action, and on the 18th March, 1835, the defendant accepted service, and an appearance was entered by his attorneys, at the request of the plaintiffs’ attorney. The writ was served on Captain Brooks, (who was joined in the same action with the defendant.) On the 22nd January, 1836, the case was ordered for judgment against Captain Brooks, by default. The defendant, Magrath, pleaded the general issue. On the 15th of January, 1838, a verdict was rendered for the defendant, which was, at February Term of the Court of Appeals, set aside and a new trial ordered. On the 18th January, 1839, the case was again tried, and a verdict of seven hundred and thirty-four dollars and fourteen cents, found for the plaintiffs. On aPpcal, the Court of Appeals, at February Term, 1839, (Rice’s Rep. 162,) ordered a non-suit, on the ground that the defendant, as owner, and Captain Brooks, as master, were improperly joined in the same action. On the 20th of April, 1839, an action was commenced against the defendant, and he accepted service, or by his attorney entered an appearcnce at the request of the plaintiffs’ attorney. To this action he pleaded the general issue, and the statute of limitations.
    Mr. William Patton, a witness for the plaintiffs, proved, that within the last two years, or about two years ago, he heard the defendant speak of this claim, as an unadjusted one. He admitted that the cotton was shipped on board his steamer, and was burned on board the lighter. He said the defendant and other steamboat owners applied to the Legislature to exempt them from liability for loss arising from fire.
    See 2 Sp, 485 ; 3 Hill, 214 ; 1 Bail. 542. An.
    
    After the plaintiffs had stated they had no further proof to offer, I said to the plaintiffs’ attorney, Colonel Hunt, that in my judgment, the statute of limitations was an insuperable bar to his recovery, and advised him to submit to a nonsuit, with leave to move the Court of Appeals to set it aside. This was accordingly done.
    GROUNDS OF APPEAL.
    1. Because, it is respectfully submitted, the Court ought to have instructed the jury, that the admission by the defendant, within two years from the commencement of the action, that the cotton of the plaintiff’s intestate was shipped on board of his steamer, and had been destroyed by fire, and that the controversy as to his legal liability was still pending, was a sufficient admission of the state of facts on which the law will raise a promise.
    2. Because the defendant, having been sued by the deceased, in his lifetime, and by his administrators since his death, and having been heard in his defence, he has always been aware of the existence of the demand, and does not bring himself within the morality or equity of the statute, and the mere informality in the suit ought not to screen him from a legal liability.
    3. Because the acknowledgment was made before the statuary bar was complete, about two years before the trial, and this was sufficient to take the case out of the statute.
    
      Hunt, for the motion. Magrath, contra.
    
      
       S. C. before; Rice, 162; Dud. 159.
    
   * Curia, per

O’Neall, J.

The cause of action in this case ac- r*oii crued on the 3rd December, 1832, when the cotton was burned. *- The suit which was instituted in William Patton’s life time, abated by his death. That case might have been connected with the first suit brought by the administrators, so as to have prevented the bar of the statute against it. But this last case was nonsuited, and the present case can be connected with neither. The plaintiffs are therefore barred, unless William Patton’s testimony could save them. It cannot have that effect, for two reasons, 1st. If it is any sort of admission of the plaintiffs’ claim, it is the slightest conceivable one. At the time it was made, two years ago, (1838,) the statute had run out, and such an admission would not be evidence to prevent the bar of the statute from precluding the recovery of a debt. 2nd. This case is an action ex contractu, for the recovery of damages, where the defendant always resisted his liability to pay them. It is therefore idle to suppose that his words to Mr. Patton admitted the legal liability from which a promise would be implied. They meant that the litigation between him and these plaintiffs was undecided. There is nothing in this to remove the bar of the statute.

The motion is dismissed.

The whole court concurred.  