plained are. It is not, however, necessary to decide that point, because my brother Ludlow does not ask for a new trial, unless we think this letter such as that a jury might fairly have inferred from it an acknowledgment of the debt."1 If there is an express promise to pay, all implied promises are excluded; and the party relying thereon must stand upon that exclusively, and cannot seek the aid of any implied promise to wrest his claim from the operation of the statute.2 In the case first cited in the last note, it appeared that Isaac Mills in his lifetime executed to one Wildman a promissory note, as follows: NEW HAVEN, June 26, 1819. On demand, for value received, I promise to pay to Zalman Wildman, or order, nine hundred and thirty-seven dollars, fifty cents, with interest till paid. Witness my hand, ISAAC MILLS. This instrument had an indorsement thereon as follows: "New Haven, May 14, 1824. Be it forever known and remembered that I owe the above note, and will pay it, and will never avail myself of any statute of limitations. Isaac Mills." And a later indorsement as follows: "New York, Oct. 13, 1840. On a settlement of all accounts between me and the estate of Z. Wildman, Esq., whatsoever balance shall be due on this (note) shall be paid. Isaac Mills." Isaac Mills died in the early part of February, 1843, and the representatives of Wildman's estate presented the note to the commissioners of Mill's estate, and it was allowed at $2,290.86. From this allowance the executors of Mills appealed, and the court, without passing upon the effect of the first indorsement, but evidently regarding it as insufficient, held that the last indorsement was sufficient to remove the statute bar; and that as the commissioners had passed upon the matter, and being the proper tribunal to ascertain the balance due, according to the terms of the last indorsement, their finding was conclusive. The appellant insisted that the promise contained in the last indorsement being express, the appellees could not avail themselves of any implied promise, and that the promise being conditional could have no force unless the condition was shown to have been complied with; and the court conceded both of these grounds, but held that a fair construction of the indorsement did not bind the appellees to a personal settlement with Mills 1 In Hancock v. Bliss, 7 Wend. (N.Y.) 267, it was held that, where the expressions are vague and indeterminate, leading to no definite conclusion, and at most only to probable inferences, which may affect different minds in different ways, as where the defendant said "that it was not in his power to pay at that time, but he hoped to see the plaintiff and do some thing about it," the evidence ought not to be left to the jury. See also Magee v. Magee, 10 Watts (Penn.), 172; Berghaus Calhoun, 6 id. 219; Clarke v. Dutcher, 9 Cow. (N. Y.) 674; Oliver v. Gray, 1 H. & G. (Md.) 204. v. 2 Mills v. Wildman, 18 Conn. 124; Tanner v. Smart, 6 B. & C. 603. in his lifetime, but to a legal settlement before any tribunal having authority to ascertain the balance due. 2 SEC. 69. Express or Implied Refusal to pay. If an admission of a debt is accompanied with a distinct refusal to pay, the implication of a promise arising from the acknowledgment is of course rebutted.1 Thus, even under the old theory (and a fortiori the case would be so still more now) an admission as follows, "I cannot afford to pay my new debts, much less my old ones," was held insufficient. So, too, if an acknowledgment is accompanied with an objection to payment, which would, if valid, have been at any time a good defence to an action, no presumption of a promise of payment will be raised. Thus, an admission of a debt made to a person, who at the same time signed a paper importing to release it, was held not sufficient to avoid the statute, although the discharge was inoperative, and was indeed conditional upon an act of the defendant which he failed to perform. So, too, where the defendant said, "I acknowledge the receipt of the money, but the testatrix gave it to me," it was held that the last expression nullified the acknowledgment of the existence of the debt. 1 Lee v. Wilmot, L. R. 1 Ex. 364; Brigstocke v. Smith, 1 C. & M. 483. 2 Knott v. Farren, 4 D. & R. 179. 3 Goate v. Goate, 1 H. & N. 29. * Owen v. Wooley, Buller's N. P. 168; De La Torre v. Barclay, 1 Starkie, 7. An admission that the sum claimed has not been paid is not sufficient, without some further admission, or other proof that the debt once existed. There must be evidence of a promise, express or implied, to pay the debt, Allcock v. Ewan, 2 Hill (S. C.), 326; Laurence v. Hopkins, 13 Johns. (N. Y.) 288; Sands v. Gelston, 15 id. 511; Moore v. Bank of Columbia, 6 Pet. (U. S.) 86; Mosher v. Hubbard, 13 Johns. 510; Guier v. Pierce, 2 Browne (Penn.), 35; Young v. Monpoey, 2 Bailey (S. C.), 278; Cohen v. Aubin, id. 283; Lowry v. Dubose, id. 425; Trammell v. Salmon, id. 308; and an admission that the debt continues due at the time of the acknowledgment, Bangs v. Hall, 2 Pick. (Mass.) 368; French v. Frazier, 7 J. J. Mar. (Ky.) 425; Wetzell v. Bussard, 11 Wheat. (U. S.) 310; Oliver v. Gray, 1 H. & G. (Md.) 204; Ferguson v. Taylor, 1 Hayw. 20; Belles v. Belles, 7 Halst. 339; Purdy v. Austin, 3 Wend. 187; Russell v. Gass, M. & Y. (Tenn.) 270; Barlow v. Bellamy. 7 Vt. 54; Mellick v. De Seelhorst, 1 I. 171. There must be such an acknowledgment as will satisfy a So where reasonable man that the defendant, at the A general acknowledgment of indebtedness to the plaintiff is sufficient, prima facie, to take a demand out of the statute; the onus lies on the defendant to prove that he referred to a different demand. Whitney v. Bigelow, 4 Pick. (Mass.) 110. It must be distinct, and without a question of its being due, or an intimation that it would not be paid. Berghaus Calhoun, 6 Watts (Penn.), 219; Gleim ». Ries, id. 44. There must be an express promise to pay, or an acknowledgment of a present indebtedness and willingness to pay. Allen v. Webster, 15 Wend. (N. Y.) 284; Stafford v. Richardson, id. 302; Gaylord v. Van Loan, id. 309. The new promise must be clear and express. Harrison v. Handley, 1 Bibb (Ky.), 443; Ash v. Pat 66 "2 the debtor said: "I know that I owe the money, but I will never pay it; " or, "I owe the debt, but I will not pay it unless I am compelled to by law; or, "I owe the debt, but am too poor and cannot pay it; or, "I owe the debt, but am under no obligation to pay it;' and, generally, if there is anything attending what was said, which repels the inference of a promise to pay the debt, it does not save it from the operation of the statute." ton, 3 S. & R. (Penn.) 300; Head v. Manners, 5 J. J. Mar. (Ky.) 255; Bell v. Morrison, 1 Pet. (U. S.) 351. The mere claiming of a balance is not sufficient. Eckert v. Wilson, 12 S. & R. (Penn.) 393. A conditional promise is sufficient, but the plaintiff must show either a performance of the condition or a readiness to perform. Oliver v. Gray, 1 H. & G. (Md.) 204; Read *. Wilkinson, 2 Wash. (U. S. C. C.) 514; Bell v. Morrison, 1 Pet. (U. S.) 351. If the defendant promises to pay a debt barred by the statute, in certain specific articles, the promise is conditional, and the plaintiff is bound to show a willingness to accept such articles. Bush v. Barnard, 8 Jolins. (N. Y.) 407. Where the maker of a note denied his signature, declaring the note to be a forgery, but said that, if it could be proved that he signed the note, he would pay it, and it was proved at the trial that he did sign it, this was held sufficient to take the case out of the statute of limitations. Seaward v. Lord, 1 Me. 163. 1A'Court v. Smart, 3 Bing. 392. Any suggestion accompanying an acknowledgment which qualifies it, or repels the idea of a promise to pay, destroys its effect. Cocks v. Weeks, 7 Hill (N. Y.), 45. In Danforth v. Culver, 11 Johns. (N. Y.) 146, the defendant admitted the indebtedness, but declared his intention to rely upon the statute; and it was held that the acknowledgment did not remove the statutory bar. 2 Jenkins v. Boyle, 2 Cranch (U. S. C. C.), 120. In Warren v. Perry, 5 Bush (Ky.), 447, the question as to whether an intimation by a debtor that he would pay in cattle or horses, and his silence under the threat of a suit unless he would pay in United States currency, implied that he would not pay money in any form, and if sued would plead the statute of limitations, was held to be one for the jury. In Cowley v. Furnell, 15 Jur. 908, the defendant wrote to the plaintiff as follows: "I am much surprised at receiving a letter from H. B. (an attorney) "for the recovery of your debt. I must candidly tell you, once for all, I never shall be able to pay you in cash, but you may have any of the goods we have at the Pantechnicon, by paying the expenses incurred thereon, without which they cannot be taken out, as before agreed, when F. was in town;' and it was held not sufficient to remove the statute bar. 3 Thayer v. Mills, 14 Me. 300. 4 Lawrence v. Hopkins, 13 Johns. (N. Y.) 238; Gaylord v. Van Loan, 15 Wend. (N. Y.) 238. In Woodfin v. Anderson, 2 Tenn. Ch. 331, a writing as follows was held not sufficient to prevent the running of the statute: "I request that no suit shall be brought on this note, and agree that the statute shall not run against it. I will pay it soon." 5 Roosevelt v. Marks, 6 Johns. (N. Y.) 290; Clementson v. Williams, 8 Cranch (U. S.), 72; Bell v. Rowland, Hard. (Ky.) 301; Wetzell v. Bussard, 11 Wheat. (U. S.) 314; Thompson v. Peter, 12 id. 567; Ormsby v. Letcher, 3 Bibb (Ky.), 271; Harrison v. Hardy, 1 id. 443; Bell v. Morrison, 1 Pet. (U. S.) 351. A clear, distinct, and unqualified acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers to, is sufficient, Johns v. Lantz, 63 Penn. St. 324; but it must be such that the debtor can be said to have recognized a present subsisting liability, and manifested a willingness to assume or renew the obligation, Simonton v. Clark, 65 N. C. 525; Chambers v. Ruby, 47 Mo. 99; Ringo v. Brooks, 26 Ark. 540. See Buffington v. Davis, 33 Md. 511, where a statement by a debtor that she regretted her inability to remit the amount of a note, and referring the holder to her agent who would do all SEC. 70. Essential Requisites of an Acknowledgment. — An acknowledgment of the original justice of the claim is not sufficient; it must go to the fact that it is due and unpaid,1 and must not be attended with any acts or expressions that evince an intention not to pay it. It must be consistent with a promise to pay, unqualified,* that the ruined condition of her affairs would permit, was held sufficient. Where a debtor, upon being called upon to pay a debt, said, "If you will call in two weeks I will pay you something, I cannot tell how much," it was held to amount to an unqualified admission of his liability to pay the whole debt, and such an acknowledgment as removed the statute bar. Blakeman v. Fonda, 41 Conn. 581. So where a father for whom his daughter had worked admitted before his decease and within six years of the time the action was brought that he had made an express agreement to pay her a certain amount, it was held sufficient to keep the claim on foot. Watson v. Stein, 76 Penn. St. 121. 1 Clementson v. Williams, 8 Cranch (U.S.), 72; Wetzell v. Bussard, 11 Wheat. (U. S.) 314; Thompson v. Peters, 12 id. 567; Boyd v. Grant, 13 S. & R. (Penn.) 124; Baxter v. Penniman, 8 Mass. 133; Jones v. Moore, 5 Binn. (Penn.) 576. A mere admission that a debt is due, and not paid, is not sufficient to remove the statute bar, when the admission is attended by expressions which repel the idea of an intention or desire to pay it. Gray v. MeDowell, 6 Bush (Ky.), 475. A promise to pay all the notes that can be produced against him, but at the same time asserting that none can be produced, does not remove the statute bar. Norton v. Colby, 52 Ill. 198. The expression in a letter written by the defendant to the plaintiff, in relation to a debt due from the former to the latter, "I feel ashamed of it standing so long," is not sufficient to take the debt out of the statute. Wilcox v. Williams, 5 Nev. 206. A debtor who allows an account against him to become stated, by omitting to dispute the same when presented, does not thereby waive the statute. Bucklin v. Chaplin, 1 Lans. (N. Y.) 447; Reynolds v. Collins, 3 Hill (N. Y.), 37. An indorsement on a note, made at about the time a note was executed, "If not paid I request indulgence," is not such a continued request as estops the debtor from pleading the statute. Carr v. Robinson, 8 Bush (Ky.), 269. 2 Senseman v. Hershman, 82 Penn. St. 83. Striking a balance, and the settlement of an account, is a clear admission of a sincere indebtedness. McClelland v. West, 70 Penn. St. 183; Johns v. Lantz, 63 id. 324. 8 Yaw v. Kerr, 47 Penn. St. 333; Airy v. Smith, 1 Phil. (Penn.) 337; Bailey v. Bailey, 14 S. & R. (Penn.) 195; Patton v. Hassenger, 69 Penn. St. 311; Watson v. Stern, 76 id. 121; Norton v. Carpenter, 2 W. N. C. (Penn.) 306; Guier v. Pearce, 2 Browne (Penn.), 35; Lyon v. Marclay, 1 Watts (Penn.), 271; Fries v. Baisselet, 9 S. & R. (Penn.) 128; Beasley v. Evans, 35 Miss. 192; Phelps v. Sleeper, 17 N. H. 332; Horner v. Starkey, 27 Ill. 13; Sennott v. Horner, 30 id. 429; Grayson v. Taylor, 14 Tex. 672; Hazlebacker v. Reeves, 9 Penn. St. 258; Webber v. Cochrane, 4 Tex. 31; Estate of Wetham, 6 Phil. (Penn.) 161; Laurence v. Hopkins, 13 Johns. (N. Y.) 288. Boss v. Hershman, 33 Leg. Int. (Penn.) 306; Eckert v. Wilson, 12 S. & R. (Penn.) 393; Gilkyson v. Larue, 2 W. & S. (Penn.) 213; Crist v. Garner, 2 P. & W. (Penn.) 251; Allison v. Pennington, 7 W. & S. (Penn.) 180; Gleim v. Rise, 6 Watts (Penn.), 44; Ayres v. Richards, 12 Ill. 146; Stockett v. Sasscer, 8 Md. 374; Wakeman v. Sherman, 9 N. Y. 88; Lowry v. Dubiose, 2 Bailey (S. C.), 425; Smallwood v. Smallwood, 2 D. & B. (N. C.) L. 336; Mastin v. Waugh, id. 517; Loomis v. Decker, 1 Daly (N. Y. C. P.), 186; Hancock v. Bliss, 7 Wend. (N. Y.) 267; Cocks v. Weeks, 7 Hill (N. Y.), 45; Bradley . Field, 3 Wend. (N. Y.) 272; Allen v. Webster, 15 id. 284; Bloodgood v. Bruen, 8 N. Y. 362; Bangs v. Hall, 2 Pick. (Mass.) 368; Mumford v. Freeman, 8 Met. (Mass.) 432; Bailey v. Crane, 21 Pick. (Mass.) 323. 2 clear, plain, unambiguous,' and so distinct in its extent and form as to preclude hesitation as to the debtor's meaning, and so as to enable the court to apply its terms as the debtor intended they should be applied.3 These rules are believed to be entirely consistent with the letter and spirit of these statutes, and essential to prevent the mischief's which the statutes were intended to cure. The laxity of the rules formerly existing operated as a virtual repeal of the statutes by judicial legislation, rather than a fair application of the rules of construction; and in this branch of the law the courts have exhibited more inconsistency and more proneness to go wrong, to carry out their notions of justice, than in any other since courts have existed. The rules stated do not preclude the raising of a promise from the recognition of a debt, where there is nothing said or done by the debtor inconsistent with an intention to pay it, but are calculated to effectuate the intention of the statutes, by giving the debtor the benefit of their protection, except in those cases where he has fairly deprived himself thereof, by having said or done that which the law can fairly regard as the foundation for an implied promise to pay the debt. Formerly, if even in a casual conversation with a stranger to the debt the debtor spoke of a claim barred by the statute, as an existing debt against him, although at the same time he declared his intention not to pay it, the naked admission of the debt was deemed sufficient, although the circumstances were such as to clearly show that he intended to avail himself of the benefit of the statute; and even though it was made after action brought, and after he had pleaded the statute thereto.' That the courts could ever have gone so far astray seems incredible, yet the reports are full of cases of the character referred to; but at the present time a more consistent doctrine prevails, and the old theories are universally discarded. 5 Where a person admits that the claim once existed, but also says that it has been paid in a particular mode, the plaintiff cannot, by prov 1 Senseman v. Hershman, 82 Penn. St. 83; Allison v. James, 8 Watts (Penn.), 380; Farley v. Kustenbader, 3 Penn. St. 418; Webster v. Newbold, 41 id. 482; Emerson v. Miller, 27 id. 278. 2 Berghaus v. Calhoun, 6 Watts (Penn.), 219; Miller v. Baschore, 83 Penn. St. 356; Magee v. Magee, 10 id. 172; Wolfinsberger v. Young, 47 id. 516; Harbold v. Kuntz, 16 id. 210. 6 Austin v. Bostwick, 9 Conn. 496; Keplinger v. Griffith, 2 G. & J. (Md.) 296; Mitchell v. Mitchell, 11 G. & J. (Md.) 388; Carroll v. Ridgway, 8 Md. 328; Murray v. Coster, 20 Johns. (N. Y.) 576; Shepperd v. Murdock, 8 Murph. (N. C.) 218; Cadmus v. Dumon, 1 N. J. L. 176. In Richard v. Hannay, 4 East, 604, the defendant, in an affidavit to the court for leave to file a plea of the statute, stated that, "since the 3 Suter v. Sheeler, 22 Penn. St. 308; bill of exchange on which the action was Shitler v. Bremer, 23 id. 413. founded became due, no demand for payWatson v. Stern, 76 Penn. St. 121; ment had been made on him," and it was held such an acknowledgment of the debt as removed the statute bar. Patton v. Hassinger, 69 id. 311. 5 Cobham v. Moseley, 2 Hayw. (N. C.) 6; Dean v. Pitts, 10 Johns. (N. Y.) 35; Mosher v. Hubbard, 13 id. 510. 7 Stevens v. Hewitt, 30 Vt. 262. |