bond barred by statute does not remove the statute bar; but it is held that an action of assumpsit may be maintained upon such promise, and the bond may be given in evidence as the consideration of the promise.1 In a New York case, a promise to pay a bond barred by the statute, evidenced by a written acknowledgment thereon within twenty years, was held sufficient to rebut the presumption of payment and to uphold an action on the bond; and in a Missouri case it was held that a part payment of a bond removed the statute bar. In a Kentucky case it was held that where the obligor of a bond, with a full knowledge of his legal rights, admits his liability, such admission removes the statute bar, and a payment of interest on a bond before the statute has run thereon has been held sufficient to suspend the statute. But the present theory relative to acknowledgments, part payments, &c., is not applicable to specialties; and where such debts are within the statute neither an acknowledgment, new promise, or part payment can operate either to suspend the operation of the statute or remove the bar when it has once attached. Upon such obligations the action is not, and in the nature of things cannot be, grounded upon a promise, but must be either in debt or covenant, or actions in effect the same; and if the obligation is in anywise changed or altered by parol or a writing not under seal, it is instantly reduced to a simple contract; but a promise to pay, or an admission of liability thereon, does not produce this effect. The action still remains a specialty action, and it is difficult to understand how to a plea of the statute a new promise can be replied; and in Alabama it is held that a new promise will not revive such a debt. The same rule applies to all specialty debts, or debts which cannot be recovered in assumpsit. Thus it has been held, and, as we believe, correctly, that the replication to a plea of the statute of a new promise is not good in an

not consider that he was indebted to the plaintiff, because he had it in his power to have saved himself with the securities received from William Taylor, and ought not, therefore, to have looked to him for the money,' sufficiently show that it never was his intention to acknowledge the claim of the plaintiff as a subsisting debt due by him, but, on the contrary, taken together, amounted to a denial of any existing liability on him to pay, and for reason, which, if true, furnished a real objection and sufficient excuse for not paying it. For if the plaintiff had in his hands securities with which he should and might have covered his claim, but from negligence or misapplication of the funds did not do so, he should not now look to the defendant for it, nor can he be permitted, by evidence of the insufficiency of those securities, to convert

action upon a judgment of a court of record, the court holding that such replications were only applicable in actions upon promises.1 But in New York such a replication to an action on a justice's judgment was sustained; but it was sustained for reasons peculiar to that State, and upon a line of reasoning that will hardly commend it as an authority. But where the statute, as is the case in some of the States, expressly provides that part payment, &c., shall remove the bar as to this class of claims to the extent so provided, effect must be given thereto; and, as will be seen hereafter, where this class of claims are left to the operation of the presumption of payment and satisfaction arising from the lapse of time, a payment, or acknowledgment even, overcomes this presumption, and gives it a new period of life. If the gist of an action is the injury committed by the defendant, and the right of action is once barred by the statute, it is impossible to revive it by an acknowledgment that the defendant committed the injury, or of an indebtedness resulting therefrom; and in the case of torts no acknowledgment can, upon any principle, suffice to avoid the statute.*

8

1 Taylor v. Spicey, 11 Ired (N. C.) L. 427; Niblack v. Goodman, 67 Ind. 174.

2 Carshore v. Huyck, 6 Barb. (N. Y.) 583.

3 Brand v. Longstreet, 4 N. J. L. 325; Avant v. Sweet, 1 Brev. (S. C.) 228. In Galligher v. Hollingsworth, 3 H. & McH. (Md.) 122, a promise after the statute had run was held not sufficient to take a case out of the statute against a carrier for a loss of goods, as it was founded upon a tort. Ott v. Whitworth, 8 Humph. (Tenn.) 494; Oothout v. Thompson, 20 Johns. (N. Y.) 278; Hurst v. Parker, 1 B. & Ald. 92.

4 Where the plaintiff has the right to waive the tort and proceed in assumpsit, the rule stated in the text does not apply, especially if the plaintiff makes his election before the statute has run. Morton v. Chandler, 8 Me. 9. In an action of assumpsit, the declaration stated as a breach, that the defendant did not diligently and sufficiently make a search at the Bank of England, to ascertain whether certain stock was standing in the name of certain persons, the defendant having been employed as an attorney so to do. The omission to search took place more than six years before action brought, although it was not discovered by the plaintiff until within six years. On the discovery being made, the defendant said that it was owing to the

omission of his clerk, and that he, the defendant, was responsible. The statute of limitations having been pleaded, it was held that upon this form of declaration the plaintiff was not entitled to recover; and held, also, that upon this record such an acknowledgment was not sufficient to take the case out of the statute. Short v. McCarthy, 3 B. & Ald. 626. In another case the declaration stated that the defendant, on consideration, &c., promised to invest the plaintiff's money on good security; but that he invested it on bad security. The defendant pleaded the general issue and statute of limitations; replication, that defendant promised as above within six years; proof, that within that time the defendant acknowledged the security to be bad, and promised that plaintiff should be paid. Held, that the plaintiff could not recover, the declaration stating no debt to which the subsequent promise could be applied. DALLAS, C. J., said: "To revive a debt by promise, and take a case out of the statute, there must be an antecedent debt, and if a promise should be made, when there is no antecedent debt, it would be necessary to frame a special declaration on such a promise." Whitehead v. Howard, 2 B. & B. 372. An assumpsit after three years is not sufficient to take a case out of the statute of limitations against a carrier, it being founded on a tort. Galligher v.

Thus, in the case last cited in the preceding note, a promise to make compensation for a trespass committed in illegally taking away coals in a coal-mine, was held not sufficient to revive the cause of action.1 This doctrine, together with the present received doctrine as to the theory of acknowledgments, namely, that an acknowledgment, to be effectual, must amount to a fresh promise to pay, is well shown in the judgment of TENTERDEN, C. J., in an English case, in which he said: "It is only in actions of assumpsit that an acknowledgment can be held an answer; and when, in the case of Hurst v. Parker, it was decided to be inapplicable to actions of trespass, LORD ELLENBOROUGH gave what appears to be the true reason, that in assumpsit an acknowledgment of the debt is evidence of a fresh promise,' and that promise is considered as one of the promises laid in the declaration, and one of the causes of action which the declaration states. If acknowledgment had the

Hollingsworth, 3 H. & McH. (Md.) 122. To an action on the case for a deceit in the sale of a negress, the defendant pleaded not guilty within six years, on which issue was joined. SPENCER, C. J., said: "The question then is, whether, if we consider the defendant as admitting the fraud, within six years, and declaring he was willing to do what was right, such admission and declaration can take the case out of the operation of the statute. The plea was that the defendant was not guilty within six years; the replication is, that he was guilty within six years next before the commencement of the suit. Now, it is inconceivable how an admission of the fraud within six years can render the party guilty of committing it anew. It was consummated when the sale took place, and any subsequent confession relates back to that period. The confession of the fact does not prove a new fraud, but the first and original one. The plaintiff, in his replication, has undertaken to prove that the defendant was guilty within the six years. Proving that he had acknowledged the fact within six years is no proof that the act was done within six years, and it does not support the issue. A case of this kind does not stand upon the same principle as the acknowledgment of a debt within six years. There, the acknowledgment is evidence of a new promise; here, it is not evidence of a new trespass, and therefore there is no analogy between the two cases. This view of the case satisfies me that without inverting all the rules of logic

(and special pleading has been aptly com-
pared to logic), it is impossible to say that
a confession of a tort is a re-perpetration
of it; and, unless it is, the fact asserted in
the replication, that the tort was commit-
ted within six years is not made out by a
confession that the tort was committed
more than six years before. Oothout v.
Thompson, 20 Johns. (N. Y.) 278. In the
case of Hurst v. Parker, 1 B. & Ald. 92,
which was an action of trespass of break-
ing and entering coal-mines and taking
away coals, the defendant pleaded actio
non accrevit infra sex annos; to which the
plaintiff replied in the affirmative. At the
trial no evidence was given to show that
the trespass was actually committed within
six years. Held, that evidence of a prom-
ise to make compensation, made by the
defendant within six years before the com-
mencement of the action, and when he
was threatened with an action for taking
away coals, was not sufficient support
to this issue; because the plaintiff was
bound to prove the affirmative, that he had
a good cause of action within six years be-
fore the commencement of the suit, and,
as the action was predicated in tort, it
could not be sustained by mere proof of a
promise to compensate for it. But if the
action had been predicated upon the prom-
ise, the rule would have been otherwise."
1 Hurst v. Parker, 1 B. & Ald. 92.

2 Tanner v. Smart, 6 B. & C. 603,

605.

8 In Little v. Blunt, 9 Pick. (Mass.) 488, what may be regarded as the correct

effect which the cases in the plaintiff's favor attribute to it, one would have expected that the replication to a plea of the statute could have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute, whereas the customary replication, ever since the statute, to let in evidence of acknowledgment, is that the cause of action accrued or the defendant made the promise within six years. And the only principle upon which it can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and, as such, creates a new cause of action, and supports and establishes the promises which the declaration states. Upon this principle, wherever the acknowledgment supports any of the promises in the declaration, the plaintiff succeeds; where it does not so support them (though it may show clearly that the debt never has been paid, but is still a subsisting debt), the plaintiff fails."

SEC. 67. Crucial Test. Rule in A'Court v. Cross.— A crucial test at length arose in the case of A'Court v. Cross.1 In that case the defendant had made an admission in the following terms: "I know that I owe the money, but the bill I gave is on a three-penny stamp, and I will never pay it." The decision in the case, which was in favor of the defendant, practically overruled a large course of intermediate decisions, and returned to something nearly approaching the strictness of the primitive construction of the act. BEST, C. J., in giving judgment, remarked: "I am sorry to admit that the courts of justice have been deservedly censured for their vacillating decisions on the 21 James I. c. 16. When by distinctions and refinement which, Lord Mansfield says, the common sense of mankind cannot keep pace with any branch of the law is brought into a state of uncertainty, the evil is only to be remedied by going back to the statute." However, it is not wholly correct to say that an acknowledgment revives the previous debt. It rather, as has been seen, creates a new debt by virtue of an implied promise; yet it does none the less to a certain extent revive the previous debt, so far as is sufficient to make it a good consideration for the new promise.

2

The present doctrine on the subject was explained with great clearness by WIGRAM, V. C., in a leading English case, as follows: "The legal effect of an acknowledgment of a debt barred by the statute of limitations is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense and for that purpose the old debt may be said to be revived. It is revived as a con

rule, and also identical with that stated in the text, was held. In that case the court say: "A new promise is a new cause of action, but the plaintiff may declare on the original promise, and if the statute is pleaded, he may reply the new promise. He need not declare specially on the new

promise." Baxter v. Penniman, 8 Mass. 133; Sullivan v. Halker, 15 id. 374; Brown v. Anderson, 13 id. 201; Oliver v. Gray, 1 H. & G. (Md.) 204; Kinne v. Schwartz, 1 Ill. 216.

13 Bing. 329. a

1151

2 Phillips v. Phillips, 3 Hare, 281.

sideration for a new promise. But the new promise and not the old debt is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him."

SEC. 68. Present Theory. - It may now be said that the theory of acknowledgment is settled as to simple contracts, on the principle that there is required either an express promise to pay the debt, or an absolute admission of indebtedness from which a promise to pay may naturally be inferred, which new promise is sufficiently supported by the