#### WILLIAM MASTIN, Administrator of JEFFERSON MASTIN v. WILLIAM P. WAUGH.

If, upon the pleas of non assumpsit and the statute of limitations, the jury find both the issues in favour of the defendant, it will be unnecessary to consider the propriety of the instructions given in relation to the latter plea.

In order to repel the statute of limitations, there must either be an express promise to pay, or an explicit acknowledgment of a subsisting debt.

Assumpsit, brought by the plaintiff to recover compensation for the services of his intestate, as a clerk in the store of Benjamin J. Parks & Co., of which firm the defendant was a member. The services were rendered from the 1st November, 1822, till the 20th October, 1825; and the account produced on the trial by the plaintiff exhibited a claim to compensation for that period. Pleas, “The general issue and the statute of limitations;” and upon the issues joined on these pleas the case was tried at Wilkes on the last Circuit, before his Honor Judge Toomer.

The suit was commenced in 1836; and it was admitted by the plaintiff, that the statute was a bar, unless there had been a subsequent promise or acknowledgment to take the case out of it. For this purpose he relied upon certain circumstances which had occurred between the defendant and himself in the winter of 1834 or 1835. At that time there was an attempt to settle the partnership accounts of Benjamin J. Parks & Co. before an arbitrator, and the plaintiff and defendant were both present; the plaintiff attending as administrator of Asbrose Parks, one of the partners. On that occasion the plaintiff, as administrator of Jefferson Maslin, brought forward the present claim ; upon which, the witness stated, “ many warm words passed between plaintiff and defendant, in relation to it, and much excitement was exhibited by them ; but no admission was made of it, either by the defendant, or Benjamin J. Parks,” another partner then present. The defendant, on his part, then introduced an account in the handwriting of the intestate, Jefferson Mastín, charging *518the defendant with hire as clerk in his service from October, 1825, till, June, 1827 — which was credited with full Payment>and closed. He also produced an account in the handwriting of the plaintiff, charging the defendant with like services of his intestate from July, 1827, till his death, in the following November, which was also credited with full payment, and dated in 1829. From these two papers, connected with the lapse of time, the defendant contended, that the jury might infer a payment of the present demand. On the-plea of the statute of limitations, his Honor instructed the jury, that “to revive the remedy, or to prevent the bar of the statute, there should have been an express promise to pay, or an explicit acknowledgment of a subsisting debt, from which the law could imply a promise.” The jury found both the issues in favour of the defendant; and the plaintiff appealed.

Devereux, for the plaintiff.

D. F. Caldwell, for the defendant.

Ruffin, Chief Justice.'

If the instruction excepted to were deemed erroneous, the Court could not reverse the judgment, since the jury found for the defendant, as well upon the first issue on non assumpsit, as upon the statute of limitations. Morisey v. Bunting, 1 Dev. 3. Bullock v. Bullock, 8 Dev. 260. This was probably; deemed the truth of the case, since there certainly was evidence from which payment might be cogently inferred.

But we are likewise of opinion, that there was no evidence to take the case out of the statute of limitations. The only witness of the plaintiff stated, that “ no admission of the claim was made,” either by the defendant or his partner. Upon this, the proper instruction, in the opinion of the Court, would have been simply that the plaintiff’s action was barred ; for thére was nothing to prevent the operation of the statute. There was no credit to be weighed; nor any fact deposed to from which the jury ought to be permitted to infer as a fact, the acknowledgment of the debt. Moreover, if there had been such evidence, the rule of law is conceived by the Court to be precisely as it is stated in the plaintiff’s exception to have *519been delivered on the trial — that there must either be an express promise to pay, or an explicit acknowledgment of a subsisting debt,from which the law can imply a promise. Terms, either exactly the same, or at all events, of equivalent import, were adopted by this Court, at the last term, in the case of Smallwood v. Smallwood, (see ante, p. 330,) as expressing our sense of the modern adjudications. Having so recently discussed this question, and endeavoured to establish the principle in this state, further observations on the subject seem not now to be called for.

The case of Smallwood v. Smallwood, ante, p. 330, approved.

PeR Cdeiam. Judgment affirmed.