myself, any balance should appear to be due him, I hereby assume payment thereof so as to prevent its being barred by the operation of the limitation act." Upon suit brought against Parker, he pleaded non assumpsit infra quatuor annos; and issue being taken upon the replication thereto, it was held, that this stipulation bound only for four years from its date, and that the statute might after that period be pleaded by the party who gave it. Lance v. Parker, 1 Rep. Const. Ct. (S. C.) 168.

Where an account on its face is barred by the statute of limitations, but the plaintiff enters a credit of recent date, which the defendant disavows, such entry, without some further proof, will not take the case out of the statute. Taylor v. McDonald, 2 Rep. Const. Ct. (S. C.) 178. A person had given a note against which the statute of limitations had run, and upon the note being presented to him for payment, seized it, saying, "I am glad I have got my hands on it. I have paid it long ago." This is not such an acknowledgment as will take a case out of the statute. Gray v. Kernahan, 2 Rep. Const. Ct. (S. C.) 65. In the case of Coltman v. Marsh, 3 Taunt. 380, the defendant pleaded the statute of limitations; the evidence

1 Hall v. Bryan, 50 Md. 194. But there must be something more than a mere mention of the debt, without questioning the indebtedness. There must be an unqualified, direct admission of a present subsisting debt. Hanson v. Towle, 19 Kan. 273. It is well settled that an acknowledgment need not be wholly by words, but may be established by any act or words that necessarily presuppose or admit the existence of a debt and an obligation to pay it. Bamfield v. Tupper, 7 Exch. 27; Purdon v. Purdon, 10 M. & W. 361. Thus, in the cases cited ante, as well as those following, the payment of interest was held to operate as an admission of a subsisting debt still due, sufficient to remove the bar of the statute. Sanford v. Hayes, 19 Conn. 591; Clementson v. Williams, 8 Cranch (U.S.), 74; Lord v. Shaler, 3 Conn. 151. And this is so whether the interest accrued before or after the

given at the trial was, that the defendant had said to the plaintiff, "I owe you not a farthing, for it is more than six years since;" held, that this was not to be left to the jury as evidence of a sufficient acknowledgment to take a debt out of the statute of limitations. Hellings v. Shaw, 7 Taunt. 608.

A party, on being asked for the payment of his attorney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of a floating balance in his hands. Quare, whether in order to take the case out of the statute of limitations, evidence is admissible to show that the bill had never in fact been paid in this manner. Semble, that such evidence is admissible, if at all, only where the defendant states the debt to be discharged by particular means, to which he refers with precision, and where he has designated the time and mode so strictly, that it is impossible it could be discharged in any other manner than that specified. Beale v. Nind, 4 B. & Ald. 566. Where the defendant in an action on a promissory note to which the defence was the statute of limitations, had said that such note had been paid by the services of his wife in the dwelling-house

principal was barred by the statute. Fryeburgh v. Osgood, 21 Me. 176. But payment of the principal will not operate as an acknowledgment of the interest. Collyer v. Willcock, 4 Bing. 315. So a payment on account, or a part payment of the prin cipal of a debt, will generally operate as an acknowledgment of the whole debt. Hooper v. Stevens, 4 Ad. & El. 71 ; Smith v. Sims, 9 Ga. 80; Sibley v. Lambert, 30 Me. 253; Raudan v. Tobey, 11 How. (U. S.) 493; Strong v. McCormick, 5 Vt. 338; Turney v. Dodwell, 3 El. & Bl. 136; Jones v. Jones, 21 N. H. 219; Illsley v. Jewett, 2 Met. (Mass.) 168; State Bank v. Waddy, 5 Ark. 348; Badger v. Arch, 10 Exch. 333. And generally all the attendant circumstances should be considered in order to arrive at the real intention of the debtor by what he said.

of the plaintiff, and the plaintiff proved that payment had not so been made, it was held that this did not amount to an acknowledgment of the debt sufficient to take it out of the statute. BRISTOL, J., in delivering the opinion of the court, said: "A debt being barred by the statute of limitations, the defendant is entitled to take advantage of it unless he consents to relinquish its protection, either expressly or by evident implication. The truth or falsehood of the defendant's declaration as to paying the demand appears to me immaterial to the true point of inquiry, which in all such cases should be, whether the defendant has, by an express or implied recognition of the debt, voluntarily renounced the protection of the statute. We think this should depend on the defendant himself, and on his own declarations; not on disproving the truth of these declarations, and thereby converting what was intended as an absolute denial of any indebtedness into an acknowledgment of such debt, and a promise to pay it. It might as well be claimed, if a defendant denied the execution of a note barred by the statute of limitations, and the plaintiff could prove that he executed it, that the defendant had forfeited the protection of the statute. No intention to waive the protection of the statute can be inferred from the declarations of payment made by the defendant, even if those declarations are proved untrue. Marshall v. Dalliber, 5 Conn. 488; Bailey v. Bailey, 14 S. & R. (Penn.) 195. In an action of assumpsit for goods sold and delivered, and on the money counts, the defendant pleaded the general issue and the statute of limitations. The defendant paid money into court generally. Held, that such payment did not take the case out of the statute. The court said: "The payment into court was equivalent to saying so much is due and no more. You cannot from such a negative imply an affirmative. The plaintiff, therefore, with respect to the rest of his demand, was in precisely the same situation as if that sum had not been paid in. Long v. Grenville, 3 B. & C. 10; Shaddick v. Bennett, 4 id. 769." In the case of A'Court v. Cross, 3 Bing. 329, the defendant being arrested on

a debt more than six years old, said: "I know that I owe the money; but the bill that I gave is on a three-penny receipt stamp, and I will never pay it." Held, that this was not such an acknowledgment of the debt as would take the case out of the statute of limitations. BEST, C. J., said: “I am sorry to be obliged to admit that the courts of justice have been deservedly censured for their vacillating decisions on 21 Jac. I. c. 16. When by distinctions and refinements, 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; or, if it be in the common law, settling it on some broad and intelligible principle. But this must be done with caution, otherwise we shall increase the confusion that we attempt to get rid of; the authority of no one court is sufficient in such a case. I will therefore go no further to-day than I am authorized to go by the authority of modern decisions." "Christianity forbids us to attempt enforcing the payment of a debt, which time and misfortune have rendered the debtor unable to discharge. The legislature thought that if a demand was not attempted to be enforced for six years some good excuse for the non-payment might be presumed, and took away the legal powers of recovering it. I think, if I were now sitting in the Exchequer Chamber, I should say that an acknowledgment of a debt, however distinct and unqualified, would not take from the party who makes it the protection of the statute of limitations. But I shall not, after the cases that have been decided, be disposed to go so far in this court without consulting the judges of the other courts. There are many cases from which it may be collected, that if there be anything said at the time of the acknowledgment to repel the inference of a promise, the acknowledgment will not take a case out of the statute of limitations."

In the case of Tanner v. Smart, 6 B. & C. 603, LORD TENTERDEN, C. J., said: "There are, undoubtedly, authorities that the statute is founded on the pre

sumption of payment, that whatever repels that presumption is an answer to the statute, and that any acknowledgment which repels that presumption is, in legal effect, a promise to pay the debt; and that though such an acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the condition or refusal void, and considers the acknowledgment of itself an unconditional answer to the statute; and if these authorities be unquestionable, the verdict which has been given for the plaintiff ought to stand, and the rule for a new trial ought to be discharged. I refer to the cases of Yea v. Fouraker, 2 Burr. 1099; Lloyd v. Maund, 2 T. R. 760; Bryan v. Horseman, 4 East, 599; Leaper v. Tatton, 16 East, 420; Douthwaite v. Tibbutt, 5 M. & S. 75; Frost v. Bengough, 1 Bing. 266; Rowcroft v. Lomas, 4 M. & S. 457; Swan v. Sowell, 2 B. & Ald. 759; Mountstephen v. Brooke, 3 B. & Ald. 141. But if there are conflicting authorities upon the point, if the principles upon which the authorities I have mentioned are founded appear to be doubtful, and the opposite authorities more consonant to legal rules, we ought at least to grant a new trial, that the opportunity may be offered of having the decision of a court of error upon the point, and that for the future we may have a correct standard by which to act.' And the rule for a new trial was made absolute. In assumpsit for fees as an attorney at law, the defendant pleaded the statute of limitations in bar of the action; at the trial the plaintiff proved a letter received from the defendant after the services performed, but more than six years before the commencement of the suit, in which he promised to pay for the services claimed in this suit, and also proved that within six years past the defendant said to him, "If I owe you anything on that claim I will pay you; but I owe you nothing." Held, that this was not sufficient evidence of a new promise to avoid the bar of the statute of limitations. Parley v. Little, 3 Me. 97.

In an action of assumpsit for money due on an accountable receipt, the statute of limitations was pleaded, and the plaintiff,

De

in order to take the case out of the statute, called a witness, who proved that he called upon the defendant and showed him the receipt, and asked him if he knew any thing of it, to which the defendant answered, "Yes, I know all about it." The witness then asked him for the amount, to which defendant answered, "It was not worth a penny, he should never pay it." He admitted his signature to the receipt. The witness said, "Perhaps you have paid it;" defendant answered, "No, never, he never had, and never would ;" and added, "Besides, it is out of date, and no law shall make me pay it." Held, that this evidence was not sufficient to charge the defendant with the debt, for there was no evidence, but the contrary, that the debt ever existed. Rowecroft v. Lomas, 4 M. & S. 457. A qualified admission by a party who relies on an objection, which would at any time have been a good defence to the action, does not take a case out of the statute of limitations. La Torre v. Barclay, 1 Starkie, 6. To a demand for the charges of preparing an annuity deed, the defendant said, "I thought I had paid it, but I have been in so much trouble since, that I really do not recollect it." The plaintiff answered, "You know the price of the annuity was paid you in a £1,000 bank-note, which you changed at Badcock's." The defendant made no answer. Held, that this was not a sufficient acknowledgment of the debt to deprive the defendant of the benefit of his plea of the statute of limitations. Hellings v. Shaw, 7 Taunt. 608. A mere demand of a debt, without process, or any acknowledgment, is not sufficient to take the case out of the statute of limitations. Hodle v. Healey, 1 V. & B. 540. In the case of Scull v. Wallace, 15 S. & R. (Penn.) 231, the plaintiff below examined Scull, one of the defendants, as a witness, without objection. All the defendants pleaded the act of limitations; and it was held that the plaintiff would not be permitted, for the purpose of avoiding that plea, to ask Scull whether it was his intent to plead the act of limitations. And although the question was left undetermined, whether an administrator may charge the estate of

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his intestate, by refusing to plead the act of limitations, although his co-administrator insists on pleading it, yet it was decided, that if one stands neutral the others may plead it. TILGHMAN, C. J., said: "A very important point was raised by the defendant's counsel, which it is unnecessary to decide, because it does not fairly arise from the evidence. This point was, whether one administrator may charge the estate by refusing to plead the act of limitations although his co-administrator insist on pleading it. But it is clear enough by the evidence that Mr. Scull, although he did not desire to plead the act, and did not think it proper that it should be pleaded, was determined to act in such a manner as should leave the widow of William Irwin at liberty to avail the estate of that plea if she judged it right to do so. Mr. M'Donald, a witness for the plaintiff, swore that Scull told him he had no doubt that the estate of Irwin was indebted to Wallace, but how much he could not tell. But in the same conversation Scull observed that Mrs. Irwin was outrageous about Wallace's claim, and was determined to plead the statute of limitations. She said she would not pay a cent of it. Scull said he would leave the matter to her altogether, and have nothing to do with it. And this was confirmed by Scull in his own testimony in the strongest terms; for he swore that he never had an idea of depriving the other administrators of the benefit of the act, if they chose to avail themselves of it. There was no contradiction in the evidence on this point, and the defendant's counsel had a right to the court's opinion whether Scull's acknowledgment, taking it altogether, took the case out of the act of limitations. The law has been well settled by repeated decisions of this court. The principle is this: A slight acknowledgment of an existing debt is sufficient to take the case out of the statute, because the jury may and ought to presume a new promise; but the acknowledgment is to be taken altogether, and if, on the whole, it is inconsistent with a new promise, no new promise shall be implied, and the statute shall bar. This is such plain common sense that it is

a wonder any opinion should ever have been held to the contrary. Now, to apply the law to the evidence in this case, Mr. Scull's confession, considered in toto, is altogether inconsistent with a promise to pay; because he expressly declared that Mrs. Irwin was determined to plead the statute, and he would leave the matter to her, and would have nothing to do with it. I am at a loss for any argument to show the inconsistency of this acknowledgment with a promise to pay. The meaning is so plain that it is impossible to misunderstand it."

As

In England, all questions about the sufficiency of acknowledgments to revive claims barred by the statute of limitations were put at rest by Stat. 8 Geo. IV. 1 MERCUR, J., in Palmer v. Gillespie, 90 Penn. St. 363. In Fiske v. Hibbard, 45 N. Y. Superior Ct. 331, the debtor wrote the plaintiff as follows: "I am well aware that I owe you for money borrowed. you have the figures, I wish you would at your leisure make out a statement of what you consider my indebtedness to you, and send it to me, resting assured that in all money matters I desire to act honestly toward everybody;" and it was held that this was a sufficient acknowledgment of a present indebtedness from which a promise to pay may be implied. In Webb v. Carter, 62 Ga. 415, a letter from the defendant to the plaintiff enclosing five dollars, to be indorsed on the note, and stating, "My son James will wind up my business, with instructions to pay you," was held to be a written acknowledgment sufficient to support a promise to pay. But in Eckford v. Evans, 56 Miss. 18, a letter as follows, "I am going to Aberdeen to-morrow, and will send fifty dollars, which is all I can spare at present," was held too indefinite, and not sufficient as an acknowledgment of the debt in suit to affect the operation of the statute. But in Bayliss v. Street, 51 Iowa, 627, a letter addressed by the maker of the note in suit, stating that he "hoped to pay," and that in case of his death he had provided for payment out of his life insurance, was held sufficient. In Treadway v. Treadway, 5 Ill. App. 478, a debtor was asked by his creditor to give

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him his note for a debt barred by the statute, to which he replied that "it makes no difference, it is all in the family ;" and it was held not sufficient to found a promise upon. Fries v. Boisselet, 9 S. & R. (Penn.) 128; Bailey v. Bailey, 14 id. 195; Allison v. James, 9 Watts (Penn.), 380; Gilkyson v. Larue, 6 W. & S. (Penn.) 213; Hazlebaker v. Reeves, 9 Penn. 264; Davis v. Steiner, 14 Penn. St. 275; Johns v. Lantz, 62 id. 324. In the last case, it was said, "No case, however, has ever gone the length of saying that there must be an express promise to pay in terms." Watson v. Sterm, 26 Penn. St. 121, and Senseman v. Hershman, 84 id. 83, declare the rule to be as stated in the cases cited. Miller v. Baschore, 85 id. 356, was not intended to overrule the long line of preceding cases. The generality of the language therein used must therefore not be understood as requiring an express promise, but a promise that may be clearly implied. A promise by the debtor, when spoken to about the debt by his creditor, that he would settle it, would pay it, would see to it that it was correct, was held sufficient to take the debt out of the statute. Palmer v. Gillespie, ante. In Bloom v. Kern, 30 La. An. part 2, 1263, it was held that letters from the debtor to the creditor, declaring his inability to pay, and asking for indulgence, were sufficient to interrupt the statute, both as to the principal debtor and his surety. But see Cook v. Cook, 10 Heisk. (Tenn.) 664, where it was held that in order to suspend the statute a request for delay must stipulate for a particular time. In Leigh v. Linthicum, 30 Tex. 100, a letter in the following words was held not sufficient to remove the statute bar, because it did not show what part of the note was left unpaid, after deducting the credits: "You said something about a note you have. You are apprised I have an offset; when I see you we will adjust the matter, and whatever is due on the note I will pay." The words, "I feel ashamed of it standing so

long," in a letter referring to a debt, held not sufficient. Wilcox v. Williams, 5 Nev. 206. A pledge of stock to secure a debt was held a continuous acknowledgment of the indebtedness that prevents the statute from running. Citizen's Bank v. Johnson, 21 La. An. 128. But this doctrine is questionable. The true rule undoubtedly is, that while the statute runs upon the debt, the lien upon the stock for the amount of the debt still remains; and after the debt is barred, the pledgee can look only to the stock for payment.

1 Hazlebaker v. Reeves, 12 Penn. St. 264; Davis v. Steiner, 14 id. 275; Moore v. Hyman, 13 Ired. (N. C.) L. 272; Hart v. Boyd, 54 Miss. 547. But unless the promise or acknowledgment is for a sum certain, it must be for that which can be reduced to a certainty. McRae v. Leary, 1 Jones (N. C.) L. 91; Shaw v. Allen, Busb. (N. C.) L. 58; Peterson v. Ellicott, 9 Md. 52; Thompson v. French, 10 Yerg. (Tenn.) 453; Hale v. Hale, 4 Humph. (Tenn.) 183; Hunter v. Kettredge, 41 Vt. 359. In Starkie on Evidence, vol. ii. p. 666, 3d ed., the following is the rule deduced from the recent cases: "From the late decisions on the effect of an acknowledgment under the provisions of the statute 21 Jac. I. c. 19, where all the former cases were brought under consideration, the result seems to be that, to repel the limiting power of the statute, it must either amount to an express promise or to so clear an admission of a still subsisting liability, that a promise must necessarily be implied." In Colledge v. Horn, 3 Bing. 119, the letter was this: "I have received yours respecting the plaintiff's demand; it is not a just one; I am ready to settle the account whenever the plaintiff thinks proper to meet on the business; I am not in his debt £90, nor anything like that sum; shall be happy to settle the difference by his meeting me." There the party uses the terms, "shall be happy to settle the difference," which admits something due; and that parol evidence may be given