#### JAMES RAINEY vs. SILAS M. LINK, ADMINISTRATOR OF JOHN TURNER.

June 1843

Proof that the defendant said at one time “ he owed the plaintiff right smart of money,” and at another, “ he owed him the biggest debt he owed to any person,” will not take a case out of the statute, of limitations.

The case of Smallwood v Smallwood,, 3 Dev. & Bat. 330, cited and approved.

Appeal from the Superior Court of Law of Orange County, at Spring Term, 1843, his Honor Judge Battle presiding.

This was an action of assumpsit to recover the amount of a carpenter’s bill and also the amount of a claim for services rendered the defendant’s intestate as a doctor. Pleas, the general issue and' the statute of limitations. Upon the trial, the testimony introduced by the plaintiff shewed that all the items of the plaintiff’s demand, amounting to upwards of one hundred dollars, were contracted more than three years before the commencement of the action. In order to repel the bar of the statute of limitations, the plaintiff introduced two witnesses, one of whom, a sister of the intestate, stated, that, not long before her brother’s death and within three years before the suit was brought, she was at his house in company with the plaintiff, who was drunk and behaved very rudely — that, upon the witness making some remark as to the impropriety of the plaintiff’s conduct, her brother said he did not care to affront the plaintiff, as he, the intestate, “owed him right smart of money.” The other witness testified, that, not long before the intestate’s death and within three years before the commencement of this action, he heard the intestate say, “ he owed the plaintiff the biggest debt he owed to any person.” By another witness it *377appeared that he, the witness, had a debt against the tate at the time of his death of about eighty dollars.

The court held and so instructed the jury, that there was not such an acknowledgment by the intestate of the plaintiff’s claim, as to take it out of the operation of the statute of limitations. The jury returned a verdict in favor of the plaintiff upon the general issue, but against him upon the issue on the statute of limitations. The plaintiff’s counsel thereupon moved the court to set aside the verdict upon the latter issue on account of misdirection, and to enter judgment for the plaintiff for the amount of the verdict in his favor on the first issue, or to grant a new trial. The court refused the motion, and having rendered judgment for the defendant, the plaintiff appealed.

Graham for the plaintiff.

Norwood for the defendant.

Ruffin, C. J.

Pérhaps no undertaking would be more difficult, than an attempt to lay down beforehand what words will or will not amount to a promise, so as to take a case out of the statute of limitations; for the construction will necessarily vary with the infinite variety of expressions that persons may use. But it is our duty to attain a rule upon this subject, as on others, as nearly as may be, that persons may knowhow to regulate their dealings and come to settlements without resorting to judicial decisions. We have heretofore in the case of Smallwood v Smallwood, 2 Dev. & Bat. 330, stated our opinion, that, although the plaintiff need not declare on the new promise, but may declare on the old one and give the other in evidence to repel the statute, yet the new promise, in order to have that effect, must be such as might be laid in the declaration as a promise to pay the same debt, and to the same extent, as is sought to be recovered in the action as brought. We can conceive no other rule, unless one so very loose as to render the stat-*378me nearly inoperative. And we held in that case, that, if -'the defendant’s letter were to be considered a promise to pay the plaintiff’s demand, yet the term “ demand” was too vague in itself, without some reference to the particular demand meant, its nature or amount, to authorize a recovery, if directly declared on, and therefore inadequate to help out an action on the original consideration. The same reasons apply to the case before us now. There is no direct promise to pay any debt; but it is an attempt to infer a promise to pay this debt from a mere acknowledgment that the intestate owed the plaintiff some debt, but on what account or to what amount he did not say and we have no means of ¡collecting, nor whether he was willing to pay it. It would opening the door to every mischief, for which the statute was intended as a remedy, if these loose declarations were allowed to constitute a promise to pay whatever the plaintiff could prove the intestate had owed him at any time and upon any account.

Per Curiam. Judgment affirmed.