Riggs v. . Roberts

Smith, O. J. A strict construction of the record would confine us to a consideration of the ruling of the court in refusing to admit the testimony of the intestate’s declarations as to his indebtedness, and of his offer of land in its satisfaction, as he was unwilling to submit his case to the jury upon the other proofs given. The exception to this ruling so far as it.affects the application of the statute of limitations to the claim, is disposed of by section 51 of the Code, which declares that “ no ac *154 knowledgment or promise shall be received as evidence of a new or continuing contract whereby to take the case out of the operation of this title ” (Limitations of actions) “ unless the same be contained in some writing signed by the party to be discharged thereby.” Again, the excluded declaration most favorable to the plaintiff is in effect, but an unaccepted offer to discharge the debt by a conveyance of land, and is in no proper sense such a recognition of a subsisting liability as in law will imply a promise to pay it. But giving a more liberal interpretation to the case, and assigning the non-suit to an intimation from his Honor, that upon the evidence the plaintiff could not recover, we proceed to examine the sufficiency of the testimony received or offered to overcome the discharge pleaded, or to remove the statutory bar. The obstruction of the statute while unremoved by any verbal promise however explicit, may be removed by an act of partial payment proved to have been made at a time commencing from which the prescribed limitation would not have expired at the beginning of the action. Green v. Greensboro College 83 N. C., 449. But there is no date fixed to the alleged partial payment in the delivery of the cattle, and the declarations of the intestate and the direct oath of the witness to the fact, neither of them determine the time of the transaction, and the burden of showing this rests upon the plaintiff. But if the sta'tute were put out of the way, the discharge under the decree in the bankrupt court remains an unsur-mounted barrier to the maintenance of the action. In order to its removal the promise though not required to be in writing, must be “ distinct and specific,’' and “ a mere acknowledgement of the debt though implying a promise to pay ” in the language of the court in Kirkpatrick v. Tattersall, 13 M. and W., (Ex.) 765, and as approved and re *155 peated in Fraley v. Kelly, 67 N. C., 78, “'would amount to no more than an account stated, and though in writing would’ be a promise which the certificate wmidJ bar.” So- Lord- Eliyenborough instructed the Jury: “You ought to be satisfied that the defendant made a distinct, unequivocal promise to pay before he is placed again in the-responsible situation from which the law has discharged1 him.” Fleming v. Hayne, 1 Starkie R., 370; Henley v. Lanier, 75 N. C., 172. The vague and indefinite language imputed to- the- intestate, would hardly be deemed sufficient to repel the statute-before the reviving promise was required to be in writing,, under the ruling in the case of Faison v. Bowden, 72 N. C., 405, where the deceased testator had said to the plaintiff,, his attending physician, to whom he was lagely indebted for professional services, “I can’t pay you what I owe you,, but I will pay you soon,.or next winter. I need wh it money I have now for building, and it will do you more good to get it in a lump.” This was held to be insufficient to repel the plea, and the court say : “ The rule to be gathered from the numerous cases to which we were referred by the counsel may be thus expressed — ‘the new promise must be definite, and show the nature and amount of the debt, or must distinctly refer to some writing, or to to some other means by which the nature and amount of it can be ascertained. Or there must be an acknowledgement of a present subsisting debt from which a promise to pay such debt may bo implied,’’ and it is added, ‘ there is nothing, in the conversation given in evidence which would enable- any one to ascertain its amount/” But a more distinct promise is required to deprive a? bankrupt of the exemption ■ secured by his certificate, and it is held by the supreme court of Massachusetts, that even a payment of interest or principal endorsed on the note by the debtor himself is insufficient t.o- warrant a jury in in *156 ferring a new promise-to pay tbe residue of the debt. Merriam v. Bayley, 1 Cush, 77; Savings v. Littlefield, 6 Cush., 210. See also 1 Par. Cont., 381; 1 Chit. Cont., 263. There is no error and the judgment must be affirmed. No -error. Affirmed.