#### JOSEPH W. GILMER v. JOHN W. McMURRAY.

Where, upon the transfer of a note, an .endorsed -credit was overlooked, so that tlie endorsee paid the full amount called for in the face of the paper, and afterwards on being applied to and the mistake pointed out, the en= dorsor said, he was willing to do what-an honest man ought to do, and paid back the amount of the credit thus overlooked, it was Held that this was no promise, express or implied, to pay, nor was it a distinct acknowl- „ edgement of a subsisting debt, so as toTepel the statute of limitations.

Tras was an action of assumpsit, tried before Shepherd, J., at a Special Term (January, I860,) of Guilford Superior Conrh

Nankin and McLean were indebted to the defendant, as guardian of certain minor heirs, and afterwards, upon ap-pointment of Gilmer to that office, the note of Nankin & McLean was transferred to him by the defendant’s endorsement. Two payments bad been endorsed on the note, which were not noticed at the time of the transfer, and tlie plaintiff allow* ed the full value called for in the face of the note. After* wards, the parties met at the office of Mr. Gorrell, in Greens* borough, and the plaintiff pointed out the mistake and claimed to have the amount of these credits refunded to him. The defendant, said “lie was willing to do what an honest man ought to do” in the matter. It was then submitted to Mr. Gorrell to revise the transaction, and ascertain whether the mistake complained of existed. Upon examining into the mat* ter, Mr. Gorrell ascertained that there was a mistake and overpayment to the amount of these endorsed credits, which tlie defendant immediately rectified by paying back the amount, with interest, in money. The defendant being sued on the endorsement, pleaded the statute of limitations. — to -which the plainiiff replied, the above transaction as a new promise to pay. The Court held that-this was not a good reply to the statute. Plaintiff’s counsel excepted.

Yerdict for the defendant, and appeal by the plaintiff.

McLean, for the plaintiff.

Morehead and Gorrell, for the defendant.

*480Battle, J..

Whether a special replication of a. new prom" ise can be relied' on to take the case out of the operation of the statute of limitations, when the action is brought by theendorsee against the endorser of a note, it is unnecessary for us to decide, for we cannot find in the facts stated in the present ease any evidence of such promise, either express or implied. The rule has been so often laid down by our Court, as-to have- become trite, that to repel the bar of the plea of the-statute of limitations in the action of assmn-psit, there must bean express promise-to pay, or a distinct acknowledgement of' the claim as an. existing debt,, from- which- a promise to pay it, may be implied; see Vass v. Conrad; ante 81, and the cases therein cited. There is certainly, in the present case, nopretence that the defendant expressly promised to pay the-debt in- dispute, and, to our apprehension, there is nothing shown from which it cam be inferred ¿hat he acknowledged, or intended to acknowledge it. From the testimony of Mr., Gorrell, it appears that the defendant, as the former guardian-of some miner children, had. failed to pay the plaintiff, who had been appointed his successor in- the office, a certain sum which was due to the wards.. This failure- had been- caused by the omission to take into account two credits endorsed on-the note of Rankin & McLean, which had been assigned together with others by the defendant to the plaintiff. The omission was rectified by the payment of the amount of these credits, but the payment was manifestly not one in part of the Rankin & McLean note, and bad no reference to the defendant’s liability as the endorser thereof. It was made simply to correct a mistake, and for- no other purpose whatever. The defendant neither did any thing or said any thing, that touched his liability as the endorser of the note in question-, and therefore, there was no acknowledgement of the debt as his, from which there can be inferred a promise that he would pay it. We concur in the opinion of his Honor, in the Court below, that the plaintiff cannot recover, and the judgment of nonsuit must be affirmed.

Per Curiam,

Judgment affirmed.