Practice — Statute of limitations.
1. To take a case out of the operation of the statute of limitations, the promise to pay or the acknowledgment of the debt must be made to the creditor himself.
2. A tender of depreciated currency will not prevent the operation of the statute.
( Simonton v. Clark, 65 N.C. 525; Thompson v. Gilreath, 3 Jones, 493; Morehead v. Wriston, 73 N.C. 398, cited and approved.)
READE, J.
To take a case out of the operation of the statute of limitation there must be an express promise to pay, or an acknowledgment of a subsisting debt from which a promise to pay may be implied.
The plaintiff does not controvert that principle, but he insists that there was an express promise here in this; that the defendant offered to pay the plaintiff in depreciated currency which the plaintiff refused to take.
It is expressly decided in Simonton v. Clark, 65 N.C. 525, that that is not sufficient.
The plaintiff further insists that when the defendant and others, partners, settled up their partnership the defendant agreed with his copartners that he would pay the plaintiff's claim and took effects of the partnership with which to pay it.
And that raises the question whether the promise to pay, or the acknowledgment of the subsisting debt must be to the creditor himself, or whether it is sufficient if made to a third person? We are of the opinion that it must be made to the creditor himself. Thompson v. Gilreath, 3 Jones, 493; Morehead v. Wriston, 73 N.C. 398.
Upon this point the decisions are not uniform; and Mr. Greenleaf says that an acknowledgment to a stranger is sufficient. The tendency of late decisions is probably that it must be to the creditor himself. In Ringo v. Brooks, 26 Ark. 540, the subject is very well treated and it is held that it must be to the creditor.
But the subject has been fully considered in this Court in the case cited above, Thompson v. Gilreath, 3 Jones, 493, and expressly decided that it must be to the creditor himself, and we willingly follow that case and refer to it for all that could be said here.
There is no error.
PER CURIAM. Judgment affirmed.
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