#### MALCOM SHAW vs. YOUNG H. ALLEN’S EX’RS.

To take a case out of the Statute of Limitations, the promise must he certain, or capable of being reduced to certainty, and the claim sued on identified as that in regard to which the promise was made.

Hence, where an account was presented to the defendant and he said cc I reckon it is correct, but I have sets-off against it, and would rather settle with the plaintiff myself,” and the witness could not say that the account exhibited on the tidal was that which was presented to the defendant: — Held that this was insufficient.

(The cases of Peebles v. Mason. 3 Dev. 67; Smith v. Peeper, 10 Ire. 86, and Moore v. Hyman, 13 Ire. 272, cited and approved.)

Assumpsit on a mercantile account. Plea, the Statute of Limitations. On the trial before Judge' Caldwell, at Anson, at Fall Term, 1852, the plaintiff, in order to remove the effect of the Statute, introduced a witness who testified that sometime in 1851, he called on the testator of the defendants at plaintiff’s request, with an account for goods sold, and said to him, “ Here is an account Mr. Shaw wishes you to settle by note;” that said testator looked over it, and said, u I reckon it is correct, but I have sets-off against it, and would rather settle it with the plaintiff myself.” The witness thought the account presented was for about $>200 — -was not certain,, but he could not say that the amount ex*59hibited on the trial was the same that he offered to the testator for settlement. The j my rendered a verdict for the plaintiff, subject to the opinion of the Court; and the Court being of opinion that the evidence was insufficient to repel the Statute of Limitations, set aside the verdict, and rendered judgment of nonsuit, from which the plaintiff appealed.

Winston, Sen., for the plaintiff.

Strange, for the defendant.

Battle, J.

The opinion pronounced by his .Honor in the Court below is fully sustained by the cases of Smith v. Lceper, 10 Ire. Rep. 86, and Moore v. Hyman, 13 Ire. Rep. 272, recently decided in this Court.

The principle stated in those cases, and more particularly in the latter -is, that “ to repel the Statute of Limitations, there must, be a promise to pay the debt sued on, either expressed or implied, and the terms used must have sufficient certainty to give a distinct cause of action, by the aid of the maxim, id certum est quod co-tuni reddipotest.” Apply the rule to this case: The words relied upon to prevent the operation of the Statute, are neither certain of themselves, nor capable of being reduced to any certainty. The witness could not sajr that the account sued upon was the same which he presented to the defendant’s testator for settlement. He could not even slate its amount. He “ thought it was about $200 — was not certain.” There was therefore no particular debt which the testator promised to pay, and none which he acknowledged, from which a promise could bo implied. Smith v. Leeper, though in some respects resembling this, was not liable to this objection, and in that case, it was held that the bar of the Statute was repelled. But if the witness had identified the account, and recollected its precise amount, still there was, in the language used by the testator, no promise to pay it, and none to “ settle” it in any sense, which can make it available for the plaintiff. The plaintiff demanded a settlement of tire account by note; the testator replied “ I reckon the account is correct, but I have sets-off against it, and would rather settle with the plaintiff myself.” He certainly did not expressly promise to pay the *60debt; or settle it by note; because he urged an objection against doing so. He certainly did not acknowledge the whole account, to be due; because he alleged that he had sets-off against it. No promise then to pay the whole can be implied; nor can any promise be implied to pay any particular part; because; supposing die sets-off did not extend to the whole, no one can say to how much they did extend, and what was the balance — Peebles v. Mason, 3 Dev. Rep. 67. The use of the term u settle ” cannot aid the plaintiff, because he did not call on the testator to come to an account with him, but to settle, that is, to pay the account by note; and the testator’s reply must be taken to have used the word in the same sense, and in that sense, it is, for the reasons above given, valueless to the plaintiff.

The judgment was right, and must be affirmed.

Per Curiam. Judgment affirmed.