ties: 17 Wend. 389; Code 585, 616 § 8; 1 Pet. 351; 6 Pet. 86; 8 Cranch 122; 8 Gratt. 110; 13 Gratt. 329; 8 Leigh 45; L. R. 10 Q. B. 500; S. C. 1 L. and Eq. Rep. 234.

Miller & Gallaher and Smith & Knight cited the following authorities for appelle: Code ch. 130 § 43; Acts 1872-3 ch. 81; 12 Gratt. 615; 13 Gratt. 427; 17 Gratt. 445; 21 Gratt. 158; 11 W. Va. 535; Bart. L. Pr. 82; 8 Gratt. 117; Code ch. 104 §8; Greenl. Ev. § 441; 4 Pick. 110; 1 Rob. Pr. 534, 535, 540, 548; 8 Gratt. 133.

GREEN, JUDGE, announced the opinion of the Court.

The first error assigned by the plaintiff in error is, that the circuit court would not compel the production by the plaintiff of two letters written by the defendant and relied on by the plaintiff as acknowledgements in writing sufficient to take his case out of the statute of limitations. The motion of the defendant to require the production by the plaintiff of these letters was made before the defendant had put in the plea of the statute of limitations, and was obviously made to obtain a view of these letters, that he might determine, whether he would plead the statute of limitations. These letters were entirely immaterial to the trial of the only issue then in the case, that is, the issue on the plea of non assumpsit; nor does the affidavit allege, that they were material to the trial of this issue. Clearly the court did right in refusing to require the plaintiff to produce this evidence. Even had they been material evidence for the plaintiff in the issue then joined, the court could not properly have for this reason required their production. To justify such requirement, they must have been material evidence for the defendant; for the rule is, that the defendant has a right to enforce the production of such documents by the plaintiff, as relate to his defence, and does not extend to the enforcement of the production of documents by means of which the plaintiff's case is to be established. See Wigram on the Law of Discovery p. 90, 13 vol. of law library. The case of Raymond v. Howland 17 Wend. 389 referred to as an authority on this point by the plaintiff in error in his petition has no bearing on the question. It simply decides, that when the letters of the correspondent of the defendant are relied upon at the trial as evidence in support of

the action, the defendant is entitled to read his answers to such letters, so that the jury may pass upon the whole of the correspondence. In this case the defendant did not at the trial produce or offer to produce the plaintiff's letters, to which these letters of the defendant were replies, and if the whole correspondence was not before the court at the trial, it was only because the defendant suppressed these letters. The two letters of the defendant, which he wished to compel the plaintiff to produce, before the issues were joined, were actually produced and read at the trial. The first assignment of error was not well taken.

The second assignment of error is the allowing of the deposition of plaintiff's witnesses to be read at the trial, because, as the petition alleges, these depositions had been before taken in this cause and filed with the six letters referred to in them, and these depositions and letters had been taken from the custody of the clerk without the leave of the court and without leaving copies or other means of identifying them, and there is no proof identifying the letters filed with the last depositions with those filed with the first. There is however in the record no proof of the alleged facts, on which this assignment of error is based. There is no proof, that after the filing of these letters they were withdrawn from the clerk's office with or without the leave of the court and no copies of them left. The record is entirely silent on this point. Thus there is no foundation for this assignment of error.

The third assignment of error is the admitting of letters written by the defendant more than five years before the commencement of this suit. These letters were referred to in the defendants letter written September 9, 1871 acknowledging the debt within five years before the commencement of this suit; and they were used to identify the debt referred to in this letter. We will presently see, that parol evidence even was admissible to identify the debt referred to in a letter containing an acknowledgment of the debt, and therefore the court did not err in admitting these letters or such of them as tended to show, what debt was intended to be acknowledged by the letter dated the 9th day of September, 1871. If any of them had no tendency to show this, as may be the case with the two letters not copied in the record, still it would have

been no error in the court to have refused to exclude them; for as said by this court in Nutter v. Sydenstricker, 11 W. Va. 543, 544: "The evidence being certified, it is for the appellate court to say, whether there is sufficient legal testimony in the case to sustain the judgment of the court below. If there was, it would not avail the defendent in error, even if improper testimony had been admitted in the court below; for when the court tries a case in lieu of a jury, it is certainly competent to disregard illegal testimony."

This

The fourth assignment of error is that the court erred in admitting parol evidence and the record of the Powhatan circuit court to make certain, what was not made certain by the defendant's letter relied on to take the case out of the statute and to identify the debt referred to in this letter. is the main objection urged to the action of the court below; and if it cannot be sustained, there is no error in the record, of which the plaintiff in error can complain. The position taken by the counsel of the plaintiff in error is, that if the bar of the statute is sought to be removed by proof of a new promise in writing, such promise must be clear, explicit, unequivocal and determinate, and if any conditions are annexed, they must be proven to have been performed; and if an acknowledgment is relied upon to take a case out of the statute of limitations, it should be a direct acknowledgment of a subsisting debt from which an implied promise may be fairly inferred. These positions are sustained by the authorities referred to by the counsel of the plaintiff in error: Bell v. Morrison et al., 1 Pet. 351; Moore v. President &c. Bank of Columbia, 6 Peters 86; Bell v. Crawford, 8 Gratt. 110; Tazwell v. White's adm'r, 13 Gratt. 329; Aylette's ex'r v. Robinson, 9 Leigh 45.

These authorities do not sustain the position, that extrinsic evidence parol or written can not be received to make certain the debt, which the defendant has acknowledged in writing without specifying the amount or date of the debt. On the contrary in Bell v. Crawford, 8 Gratt. 177, Judge Moncure says: "It was not necessary, that the amount of the debt should have been specified in the letter. The particular debt, to which the letter refers, may be identified by extrinsic evidence." This position of Judge Moncure is sustained by the authorities. See Lechmere v. Fletcher, 1 C. & M. 631; Bird

v. Gammon, 3 Bing. N. C. 883 (32 E, C. L. 368); Waller v. Lacy, 1 Mann. & G. 54 (39 E. C. L. 349); Gardner v. McMahon, 3 Adol. & El. (N. S.) 561 (43 E: C. L. 867); Cheslyn v. Dalby, 4 You. & Coll. 238 (9 M. & W. 633); Barnard v. Burtholomew, 22 Pick. 291. It may be added, that the date also of the debt acknowledged in writing by the defendant may be supplied by parol evidence. Edmonds v. Downes, 2 C. & M. 458.

The only question remaining to be determined is, does the evidence in this case show, first, an acknowledgment by the defendant of the debt in writing, and whether this acknowledgment is a direct acknowledgment of a subsisting debt, from which an implied promise to pay it may be fairly inferred; and secondly, is the debt, if so acknowledged, made certain by extrinsic evidence either parol or in writing? Our statute (see Code of W. Va. p. 548 ch. 104, § 8) provides, that "no promise except by writing as aforesaid shall take a case out of the operation of the statute. An acknowledgment in writing as aforesaid, from which a promise may be implied, shall be deemed to be such promise within the meaning of this section." We have seen, that no promise can be implied from any acknowledgment except a direct acknowledgment of a subsisting debt; and we may add, that such implication cannot arise, if it appears from the writing, that though the debt was directly acknowledged, yet this acknowledgment was accompanied by expressions, which showed, that the defendant did not intend to pay it and did not intend to deprive himself of the right to rely on the statute of limitations; for under such circumstances no promise of payment can be fairly implied. Thus in Moore v. The Bank of Columbia, 6 Pet. 90, a witness proved, that he casually overheard a conversation between the defendant, who was drunk, and two of his drinking companions, who were bantering him about his independent circumstances and about his being so clear of debt and of the banks. The defendant being drunk jumped up and danced about the room and exclaimed: "Yes, except one damned $500 in the Bank of Columbia, which I can pay at any time." It was decided, that this did not remove the bar of the statute, though thepromise or acknowledgment was not then required to be in writing. So the bar of the statute was held not to

be removed by a letter, which said, "though I do not deny it, I do not promise to pay it; whether I will promise, and what species of payment I will make, I reserve for further consideration." Morrell et al. v. Frith, 3 M. & W. 403 (34 E. C. L. 373). So a promise cannot be inferred from a writing, when it is clear that the meaning of the defendant was not to render himself personally chargeable but to inform the plaintiff of trustees with funds to pay the debt. Whippy v. Hillary, 5 C. & P. 209; 3 B. & Ad. 399 (23 E. C. L. 103). So a writing charging a reversionary interest, when the same should come into possession, would not be regarded as such an acknowledgment, as would subject the party to a suit for a debt barred by the statute. See Martin v. Knowles, 1 Nev. & M. 421 (28 E. C. L. 327). But on the other hand a letter may amount to an acknowledgment of the plaintiff's demand and a promise to pay it, though it points out a source of payment, when it does not confine the creditor to the source indicated; as where besides expressing a hope, that money from a certain source will end the delay in payment, it in effect says, that at all events the debt must be ultimately redeemed. Bird v. Gammon, 3 Bing. (N. C.) 883 (32 E. C. L. 366).

In the case before us the letter relied upon to remove the bar of the statute of limitations was as follows:

"CHARLESTON, September 9, 1871.

MY DEAR FRIEND:-Your letter from Richmond reached me this morning. If you knew the struggle I have had since the war you would not think hard of me, or strange in me, for not paying you all I owe you. It is needless for me to give you a detail. Yon are not my only creditor by a good deal, and my bread and meat debts I have had to pay first. If I had any money over and above this, I would send it to you without solicitation. I have land, the taxes on which amount to full $100 a year. If I don't pay I lose the land. I have been at the bar about two years; a lawyer has to wait for his fees; mine are beginning to come in, and as fast as I get money it goes in payment of what I owe. I will never keep a $100 in my pocket as long as I owe a just delt, and never have. On my honor, you shall be paid as I get the money over and above bread and meat. I can do no more. I have just returned

my