majority"> HaNDY, J.,

delivered the opinion of the court.

This action was- brought by the plaintiff, upon two promissory notes, made by Robert C. Evans and Thomas L. Evans, dated 3d February, 1841, and payable in November thereafter, — one for $1830.38, and the other for $976.50. Among other things, the defendants pleaded the Statute of Limitations, of six years, to which the plaintiff replied, denying the allegation, and upon that issue the case appears to have turned.

Both of the notes appear to have been written on one piece of *196paper. On tbe reverse side of the part of the paper on which the note for $1880.38 is written, are indorsed several credits, for payments made in 1841 and 1842; and on the reverse side of the paper on which the note for $976.50 is written, there is an indorsement in the following words: “Natchez, Nov. 30, 1850. I hereby acknowledge the within note, for the sum specified, to be a just claim against R. O. and T. L. Evans, and promise, as soon as I may be enabled to do so, to settle the same; hereby waiving, in so far as I can do so, the outlawry of the note. Robert C. Evans.”

. On the trial the court instructed the jury properly, that it was for them to determine from the circumstances of the entries upon the notes, to which of these notes this promise or acknowledgment was intended to apply; and the court also gave the following instruction : “ If the promise, or undertaking of the defendant, to pay one of the notes in question, — and such promise or undertaking is to be taken together, — was conditional and predicated upon his ability to pay the same, then, unless it be shown in evidence that the defendant was'or is able to pay such note, and in the'absence of proof to that effect, the jury are not to presume the same, and will find for the defendant.”

The plaintiff excepted to this instruction, and the verdict and judgment being for the defendant, the plaintiff sued on this writ of error.

We think that this instruction is erroneous in two respects:—

1. It refers the important question of' the construction of the written promise or acknowledgment indorsed on the notes, or upon one of them, to the jury, to be settled by them. This was a manifest error. It was for the court, and not the jury, to determine the construction and legal effect'of the writing, and to instruct the jury whether it was sufficient to' take the notes, or either of them, out of the operation of the statute, leaving it to the jury to determine, from the circumstances, to which of the notes the writing was intended to apply. 2 Parsons on Contr. 4.

2. The instruction conveys the idea that the writing must be regarded solely with reference to the promise to pay the note, and if that promise was conditional, and dependent upon the defendant’s *197ability to pay, then that the promise is ineffectual to take the case out of the statute, and the verdict should be for defendant.

The error in this is, that it confines the writing to the effect to be given to it as a promise to p>ay, discountenancing the idea that it could have any effect as a new acknowledgment of the indebtedness. The statute plainly recognizes that an acknowledgment that the debt is due and unpaid, may be sufficient to revive a cause of action barred by the statute (Hutch. Dig. 832, § 16); and that may be effectual for the purpose, though there be no promise to pay, or a promise to pay which is insufficient, provided the acknowledgment be clear and distinct, and unconditional.

The writing here, commences with a positive and clear acknowledgment, that the note referred to was a just claim; then follows a conditional promise to pay, when he may be able ; and it concludes with an express waiver,, so far as he could do so, of any 'objection on the ground of limitation. It is, therefore, very clear that, though the promise to pay was insufficient, yet the acknowledgment of the justness of the claim, and the waiver of the defence of the Statute of Limitations as to the party who signed the writing, are clear and unconditional, and abundantly sufficient to revive the cause of action upon the note referred to by it.

For these reasons, the judgment must be reversed, and the cause remanded for a new trial.

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