Opinion of the Court by
This was an action of assumpsit. The defendant below plead non assumpsit, and the statute of limitations. On the trial of this cause, after the plaintiff, Schwartz, had gone through with his testimony, the defendant moved the court to charge the jury that the testimony was insufficient, which instruction the court refused to give, and a bill of exceptions was tendered and signed, containing all the testimony given in the cause.
The testimony is very loose, confused and contradictory. After a careful perusal of it, the mind is left without any satisfactory conclusion as to the real merits of the case. The duty of the court, in a case thus situated is very difficult. We are, however, satisfied that injustice has been done, and that the cause ought to be presented to another jury.
In a recent case, decided in the supreme court of the United States, they were of opinion, that proof that defendant had promised to pay a debt barred by the statute of limitations, is insufficient, without evidence of the original consideration of the indebtedness. The promise to pay a debt barred by the statute, only removes the bar and leaves the case to be proved as if no statute of limitations had been pleaded. The evidence on this point is very defective. It is impossible to gather from the proof the precise nature of the original debt. Without some clear and distinct evidence of the existence of the original demand, it was the duty of the court to have sus*281tamed the defendant’s motion for a nonsuit, or given the instructions.
Eddy and Breese, for plaintiff in error.
Baker, for defendant in error.
As this case will have to go to another jury, the court lay down the following, as the rule heretofore adopted by this court as to what proof is required to take a case out of the statute.
The promise to pay must he absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.
Several other objections have been raised to the proceedings in this cause, but the court do not deem any of them of sufficient importance to be commented upon, except the objection that the court suffered the security for costs to be discharged and new security taken, and then permitted the discharged security to testify. This was correct. Security for costs is in the nature of special bail, except the liability is' not so great, yet bail are often discharged in order to obtain their testimony.
The judgment must be reversed with costs, and the cause remanded to the Jackson circuit court, where a venire de novo must be awarded, (a)
Judgment reversed.