#### ZEPHANIAH McCURRY v. JAMES McKESSON, administrator.

There was an agreement to pay a debt in good cash notes, which was barred by the statute of limitations; afterwards, within three years of the bringing ®f the suit, the plaintiff asked the defendant for the money, to which the defendant said he had paid part of it, and asked how much was the balance, winch the plaintiff slated to be a certain sum; the defendant then asked if ho could still pay in good easb notes; to which the plaintiff replied he could do so; upon which the defendant said he would settle and make all right, it was held that this took the original promise out of the operation of the statute.

Where a promise is barred by the statute of limitations; and a new promise is made between tlie same parties, to. cte. the same thing, the old promise is revived, and the replication to the statute, will be a general, and not a special one.

Tins was an aetion of assumpsit, tried before Ellis, J-, at the Fall Term, 1856, of Taney Superior Court.

The defendant relied on the statute of limitations.

The claim of the plaintiff was for the recovery of money which the defendant’s intestate owed for a note of $75, which lie had bought of the plaintiff. There was evidence tending to show the indebtedness of tbe defendant’s intestate, and his agreement to pay for the paper in good, cash notes. This *511agreement, however, as proved, was more than three years before the bringing of the suit.

A new promise, or acknowledgment of a subsisting debt, was relied on to repel the bar of the statute. Upon this point, one McOurry swore that, in the year 1852, within less than three years of the bringing of the suit, he heard the plaintiff demand payment of the defendant’s intestate of a debt which he owed him for the purchase of a note. Intestate replied, “ you know I have paid fourteen or fifteen dollars on itto which the plaintiff assented: ITe then asked the plaintiff how much he claimed ; to which the plaintiff replied, “ sixty odd dollars.” The intestate then asked the plaintiff if he would take good cash notes according to the original contract. The plaintiff replied that he would if the notes were good. To which the defendant’s intestate made answer, that they should be good, or he would make them good. lie further said “ he could not settle then, as his papers were at his residence, (some miles distance); but that he would get them, and make the settlement, and make it all right.”

The only question was whether the testimony of McOurry took the case out of the operation of the statute of limitations; which question was, by the consent of the parties, reserved by the Court, with leave to set aside the verdict and order a nonsuit if the Court should be of opinion against the plaintiff.

Afterwards the Court declared his opinion to be that, a fair interpretation of the conversation of the plaintiff’s intestate, was, that after a reference to his papers, he would settle and pay the balance due in good cash notes, which was not a promise to pay in money, and, consequently, there was no new promise which would prevent the operation of the statute.

"Whereupon, the verdict was set aside, and a nonsuit entered according to the agreement, from which judgment the plaintiff appealed.

Eclney, for the plaintiff.

Gaither^ and W. W Woodjvn, for the defendant.

*512Battle, J.

The case of Falls v. Sherrill, 2 Dev. and Bat. Rep. 371, which has recently been referred to, with approbation in the case of Thompson v. Gilreath, 3 Jones’ Rep. 493, is a direct authority to show, that where the old promise is barred by the statute of limitations, and the new one is relied on to repel the effect of the statute, the declaration must be upon the first assumpsit, and the second promise revives the first, or is evidence of similar continued promises from the time the contract was made. This is where the assumpsit is between the same parties, and to do the same thing; and in such a case the replication to the plea of the statute, will be a general and not a special one; for it is manifestly necessary only to traverse the plea, and conclude to the country. 1 Chitty’s Pl. 583.

In the case now before us, the original, and the new, promises were between the same parties, and it was to do precisely the same thing; for the defendant’s intestate referred to the original contract, and said, in substance, he would pay the debt in good cash notes according to it, and to this plaintiff assented. In this respect, then, the case is materially different from that of Taylor v. Stedman, 13 Ire. Rep. 97, where the original promise was to pay in money, and the new promise proved, was to pay in good notes, or judgments.

In that case, the replication alleging a promise to pay in money, it was properly held that the testimony did not support it, and the plaintiff failed in his action, because his proof varied fatally from his allegation. In the present case, the declaration is upon the original promise to pay in good cash notes, and that is sustained, under the general replication, by proof of a new promise to pay in the same way.

The plaintiff then is entitled to recover, if the promise upon which he relies to take his case out of the operation of the statute, identifies the debt with sufficient certaiirty, according to the rule established by several recent decisions of this court. Moore v. Hyman, 13 Ire. Rep. 272 ; Loftin v. Aldridge, 3 Jones’ Rep. 328. That rule is that, to repel the statute of limitations, there must be a promise to pay the debt sued on, *513either expressed or implied, and the terms used must be certain in themselves, or must have sufficient certainty to give a distinct cause of action by aid of the maxim, id oertum est quod certwn potest reddi. This, we think, he has done.

The testimony, relied upon to prove the new promise refers to the original contract too plainly to be misunderstood, and the amount of sixty dollars is ascertained beyond a question. The word, “odd,” may be rejected as surplusage, upon the maxim, utile per inutile nonvitiatur. See Collett v. Frazier, 3 Jones’ Eq. Rep. 80.

Pee CueiaM, Judgment reversed.