#### ERASMUS D. WOLFE vs. SAMUEL FLEMING.

Probably if there bean explicit acknowledgment of a debt, and a distinct admission that it has not Been paid but still exists, and nothing more be said ab'out the mode or time óf payment as proposed by the debtor, or of his objection to pay upon the ground of the statute of limitations, or some other defence, then such unqualified admissions might go to the jury as evidence of a new promise. But if the language of the party be so vague and indeterminate, as not in itself to amount to a promise; orto satisfy the mind, eitherfrom its own terms or something referred to, whaf the party meant to engage, there is nothing to repel the statute of limitations.

To repel the bar created by this statute, the words ought not to . leave the meaning in-doubt, but should clearly indicate the intention toassume or to renew the obligation for the debt.

Where it was proposed to the defendant that if he would pay the principal’, the interest should be forgiven, and he declined the proposition, ' and in turn, requested the witness to.buy the debt (which was about $655 principal, and about $180 interest) for $500, and expressed the opinion that the creditor would accept that sum, held that these words did not take the case out' off the statute of limitations. This language imports more an offer to compromise, than a promise to pay the debt.

This was an action of Assumpsit for goods sold and delivered, tried at Fall Term, 1839, of Burke Superior Court of Law, before his honor Judge Pearson. The pleas were the general issue and statute of limitations. The’plainiiff proved the delivery of the goods, and that the price agreed on was $655 10-100 to be paid in April, 1832. The writ was issued 24th April, 1837. The plaintiff read three letters of the defendant, apologizing for not having paid sooner, apd professing a perfect willingness to pay &c. The last letter was dated in October, 1833, asking indulgence until December, and promising to.pay at that time. The plaintiff then balled Mr. McKesson, who swore that, sometime in the. year 1836, at the request of the plaintiff, he called upon the defendant and stated to him “ that he was authorized by the plaintiff to propose to him, that, if he would pay the princi*291pal, the interest would be forgiven.” The defendant replied, “ I wish you would buy the debt for me for $500: I think by your stating that it is a hard case, he will agree to take that sum.” The witness promised to inform the plaintiff of the defendant’s proposition, and the conversation ended. The plaintiff here closed his case and the defendant offered-no evidence.

The court instructed the jury that if they believed the evidence, they would find the general issue in favor of the plaintiff, but that they must find the plea of the statute of limitations in favor of the defendant; for to take a case out of the statute of limitations, there must be a promise to pay, either express or implied; that in this case there was no evidence of an express promise, and the evidence, if true, did not establish a state of facts, from which the law would imply a promise. There was a verdict for the defendant, and the plaintiff’s counsel obtained a rule for a new trial, on the ground of misdirection by the court. This rule upon argument was overruled, and judgment rendered for the defendant, from which judgment the plaintiff appealed' to the Supreme Court.

No counsel for the plaintiff.

Saunders for the defendant.

Ruffin, Chief Justice.

Although the facts stated in the record are not precisely the same, nor as strong as they were when the case was formerly before us, 4 Dev. & Bat. 129, yet we concur with his Honor in thinking, that enough does not appear to take the case out of the statute of limitations, according to the former decisions.

The whole question turns on the testimony of the witness (McKesson,) who testified for the plaintiff on both trials. Not the least remarkable circumstance in the case is the difference in the ¡statements of that person’s testimony upon the two trials. On the first he is made to say, that the defendant refused to pay the debt; and moreover, that, after offering to pay $500, the defendant declared, that, if the ■plaintiff would not take that sum, he would pay no more, *292and would plead the statute of limitations. We thought cleal'ly¡ diat such refusal to make payment and express relianee on the statute, repelled all idea of a promise to pay. rphe witness now omits all that he then said on the subject of the defendant’s express refusal to pay, and of his pleading the statute. Perhaps few circumstances could more strikingly exemplify and illustrate the correctness of the rules adopted by us, than these discrepancies. They show the propriety of requiring something more than language, which, by straining, may be made to mean an acknowledgment of the debt; something explicit and unequivocal, that might not have been intended in one sense by the speaker, and understood or misunderstood in another sense by the witness. Hence we have thought it proper at different times to say ‘íthat no acknowledgment is sufficient, uuless it furnish a plain inference, that the defendant thereby intended to engage to pay the debt:” “ that it ought to be such an acknowledgement as would be evidence to sustain an action on it as a special promise:” “that besides acknowledging the debt to have been contracted, and that it is not paid, there ought to be something to indicate an existing willingness or intention to pay or to remain bound;” expressions varying, • indeed, in the terms used, but of the same import and meaning. Probably, if there be an explicit acknowledgment of a debt, and a distinct admission that it has not been paid but still exists, and nothing more be said about the mode or time of payment as proposed by the debtor, or of his objection to pay upon the ground of the statute or some other defence, then such unqualified admissions might go to the jury as evidence of a new promise. But if the language of the party be so vague and indeterminate as not, in itself, to amount to a promise, or to satisfy the mind, either from its own terms or something referred to, what the party meant to engage, we think there is nothing to repel the statute. In the case, as now appearing, it is not pretended that there is an express promise to pay. Neither do we think there is a fair, much less a plain inference or implication of a promise. The witness proposed to the defendant, that, if he would pay the principal, the interest should be forgiven. That was not *293accepted by the defendant; but he, in turn, requests the witness to buy the debt for $500, and expresses the opinion, creditor will take that sum. It cannot be reasonably assumed, after the detendant had declined availing himself of the first proposition, so favorable to him, that immediately he should intend by his own proposition to acknowledge and assume the whole debt, principal and interest, or indeed any part of it, except upon the footing of his new and conditional offer, which has not been accepted on the other side. The language of the defendant purports to be in the nature of a proposition of compromise, and of his desire that the witness should befriend him in buying his peace, rather than an acknowledgment of his legal obligation and willingness to pay the debt in question. But to repel the bar of the statute the words ought not to leave the meaning in doubt, but should plainly indicate the intention to assume or renew the obligation for the debt.

Per Curiam. Judgment below affirmed.