#### Alexander v. Hutcheson,

From Mecklenburg.

There is a dUIei-enee between such an acknowledgment, as will take a case out of the statute of limitations, and such as is necessary to de feat tlie plea of infancy. In the former case, the slightest words arc sufficient; in the latter, nothing short of au express promise will guf fice.

This was an action of assumpsit brought by the Plain tiff, as administrator of William Hutcheson, for $320,, •bo price of articles purchased, as was alleged, by the Defendant, at the sale of the estate of William Hutche-son. The Defendant relied on the plea of infancy, to which there was a replication, promise after coming to lull age. Plaintiff, in suppou'; of Ms replication, introduced, as a witness, the former guardian of the Defendant, who swore, that five or six years after Defendant arrived at full age, the Plaintiff and Defendant met at his house, with several others interested in the estate, fertile purpose of making a final settlement of their res pective claims. The witness stated the account, between Plaintiff and Defendant, as he understood it from both parties, and it appeared that there was a balance due Plaintiff of $ 9,44. Defendant at the time insisted he was entitled to a further credit by virtue of a bequest in his father’s will. Some óf the property which Defendant bad purchased at the sale, he had retained ever since i?his possession. There was no proof of any express pro - mise to pay, by Defendant, after he arrived at full age-*536aiffi pe never took any steps, after coming of age, t> ,ui~ peacli or make- void the contract of sale.

. On these facts, Paxton, Judge, who presided, instruct-e(j jury? that if they were satisfied, from the conduct of the Defendant, after he came of age, that, he had confirmed the original contract, they ought to find for the Plaintiff j and^finit it was not absolutely necessary to prove an express promise, to entitle him to recover. A verdict was returned for Plaintiff. New trial refused, judgment and appeal.

Wilson, for the Defendant,

insisted there was a difference between such an acknowledgment as would take a case out of the statute of limitations, and such as was necessary to defeat the plea of infancy. In the former case, the slightest words have been held sufficient; in the latter, nothing short of an express promise will suffice.— (1 Sehv. JV*. P. 141-2- — Strange, 690 — 2 Msp. Rep. 628.)

Taylor, Chief-Justice.

An examination of the authorities applicable to this question, leads irresistibly to the conclusion, that the law is in favour of the Defendant, and that the Jury ought to have received an instruction, that nothing short of an express promise to pay, made by the Defendant, after lie had attained his age of discretion, would be sufficient to render him liable in this action. Such a promise must likewise be voluntary, and given with a full knowledge that the party making it, stood discharged by law. The form of pleading in such a case shews the light in which tiie law regards it, for the words of a replication to a plea of infancy, are, “ that after he had attained Ms age of 21 years, he assented to and ratified and confirmed the said promise,” thereby putting in issue, whether a distinct, deliberate and unequivocal promise were made.

The case cited from Espinasse, which is precisely in point, draws a strong and rational distinction between the acknowledgment necessary to take a cáse out of the *537 statuie of limitations, and such a one anís sufficient to repel the, plea of infancy ; and £ have not been able to find any case, that, in the least decree, conflicts with that decisión. It is too late now, after go many deei-sions running in the same channel, to question that a very slight acknowledgment will take a case out of tlie statute of limitations, though it was formerly held, that a promise to pay was necessary. Anil this «leparhire from the letter of the statute, has been, more than once, a subject of regret with able lawyer. — (2 Saund. 64 — 4 East. 599.)

The distinction established between such an act as ¡shall deprive the Defendant of the benefit, of the statute of limitations, and snch a one as shall destroy the de-fence of infancy, is founded in good sense and ought to be maintained. In the first case there was a legal obligation to pay, arising from the original assumpsit, against which obligation, the length of time operates as a bar; and a mere admission that the debt is not paid, shows that the presumption, on which the statute is founded, fails in its application to the case.

But, in the case of an infant, the law regards bins an positively incapable of contracting a legal obligation, except for necessaries; and, therefore, aims to prevent his being imposed upon by persons of more experience. Whether an infant be under a moral obligation to pay a debt, must depend on the circumstances under which the contract was made $ and, if it can be clearly collected from them, that advantage has been taken of his inexperience for the purpose of imposing on him, he may very justly shelter himself under his privilege. But supposing the contract to have been equitable, and a moral obligation thus created, the mere acknowledgment of it can have no legal effect; for such an obligation can, at the utmost, only amount to a consideration for an actual promise. Therefore, I have no hesitation in saying, that a new trial ought to be awarded.

*538Henderson, Judge.

This is unlike the promise which revives the remedy, when barred by the- statute of limitations, where the bare acknowledgment of an unsatisfied consideration is sufficient; for, in this case, there must be a new promise, an actual responsibility assumed, after arrival at full age. The original contract conferring no legal right, it being only a sufficient consideration to support a new promise. In the case of the statute, of limitations, the original contract conferred a right; the remedy, only, is lost by a lapse of time, which raises a legal presumption that nothing’ is due, which presumption is repelled, or rather destroyed, by the hare acknowledgment of a subsisting or unsatisfied consideration. This, I apprehend, gives rise to what is said in the books, that to support an action, on a contract made during infancy, there must be an express promise after arrival at full age ; whereas, an implied promise will sustain an action, on a demand barred by the statute of limitations. If by an express promise, is meant a promise in words, the law is not so ; any thing, either by words or acts, which amounts to ah assumption, or promise of the debt, is sufficient, as stating an account; for why state the account, but to shew the sum due, and why shew that, unless it is to be paid. But, I think, the Judge erred in informing the Jury, that by the settlement, in this case, the origiual contract was ratified. The Defendant incurred no other liability than he then assumed, and the balance which he then recog-nised to be due, or, which is the same thing, which resulted from such recognition, to be ascertained by calculation not by inference, with every credit and deduction which he then claimed, is the extent of the obligation which he intended to incur; and no farther, than such extent, should the Jury have been instructed to go. The rule for a new7 trial must, therefore, be made absolute.

Hall, Judge, concurred.