1 Bangs v. Hall, 2 Pick. (Mass.) 368; Cowan v. Magauran, 1 Wall. (U. S.) 66. In Marshall v. Dalliber, 5 Conn. 480, the defendant admitted that the note sued upon was originally just, but insisted that it had been paid by his wife's services. It was proved that the note had not been so paid. The court held that the admission did not remove the statute bar. "The principles of law," said BRISTOL, J., "applicable to this question have frequently been the subject of judicial construction, and are now settled in the courts of the United States, the State of New York, and our own State, in a manner more conformable to the intent of the legislature than many English cases. Clementson v. Williamson, 8 Cranch (U. S.), 72; Sands v. Gelston, 15 Johns. (N. Y.) 511; Lord v. Shalor, 3 Conn. 131. These principles," he adds, "require that to do away the statute of limitations a defendant must voluntarily relinquish the protection it was intended to afford, either by an express promise to pay the debt, or by acknowledging that it is due, from which the law raises a promise to pay, and which is tantamount to an express promise.

"If such are the settled principles to which our decision must acquiesce, the only remaining inquiry must be, whether tho defendant, by his acknowledgment, did admit the continued existence of the original debt, or promise to pay it. This he might do, either in express terms, or by strong implication from other language which he might use.

"It has not been contended that the language used by the defendant contained a promise to pay the debt, or an acknowledgment of its justice, either express or implied. On the contrary, the defendant denied his liability, and declared the debt was satisfied, by the services of his wife, while she lived in the family of the tes

tator.

"Now, whatever doubt may have existed in the decided cases, whether the acknowledgments relied on did or did not amount to an admission of the debt, or a promise to pay it, still, such admission or promise, either by the defendant himself,

or some other person referred to by him, has been generally held as absolutely neces sary to take a case out of the statute; and the adjudged cases here generally turned upon the true import of the evidence relied on, rather than on any serious doubts respecting the law. But in the present

case there is no doubt relative to the import of the defendant's admissions; nor can any inference be made against the defendant, unless his declarations relative to the mode of payment are suffered to be disproved, and what was in fact a denial of the debt on his part thus converted into an absolute acknowledgment of the debt and a promise to pay it.

"It is said, however, that if the plaintiff can disprove the mode of payment alleged by the defendant, this will raise a presumption that the debt is still due, and be equivalent to a direct acknowledgment of the debt by the defendant; and this principle receives considerable countenance from the case of Hellings v. Shaw, 7 Taunt. 608. In delivering his opinion in that case, CHIEF JUSTICE GIBBS observes: "That where a defendant states, not that a debt remained due, but that it is discharged by particular means, to which he has, with precision, referred himself, and where he has designated the time and mode so strictly that the court can say it is impossible it had been discharged in any other mode, there the court have said, if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground upon which he professed to rely.'

"But if the authority of this case were unquestionable, I should think it admitted of much doubt whether the mode of pay. ment alleged by the defendant was disproved or falsified by the testimony of the plaintiff. The evidence of the plaintiff did not disprove the services of the defendant's wife, or show that those services had been satisfied by the testator in some other way. The services might have been rendered to the testator, and not charged on book, and the defendant might have had a fair claim on the testator for the value of such services, which he recognized; and he might

have agreed that such services should satisfy the note, although it was dated after such services were rendered. To conclude that the defendant's language meant nothing but a strict and technical payment would be absurd. The first answer to this authority, therefore, is, that the special mode of payment alleged by the defendant was not disproved by the plaintiff's evidence; and, of course, there is no implied admission of the debt.

"This court, however, are not bound by this precedent; nor can they properly follow it, unless satisfied of its being reasonable and just. We have looked through the English decisions for the adjudged cases, from which the position of CHIEF JUSTICE GIBBS is derived; but we have looked in vain. In the subsequent case of Beale v. Nind, 4 B. & Ald. 568, the Court of King's Bench appear dissatisfied with the positions taken by the Chief Justice of the Common Pleas. CHIEF JUSTICE ABBOTT said: He was by no means satisfied that it was competent for the plaintiff to falsify what the defendant said as to the demand being paid; and BAYLEY, one of the most learned and accurate judges then on the court, says: I am certainly not aware of the cases to which my LORD CHIEF JUSTICE GIBBS refers, to support that proposition. In another report of the same case, decided by the Common Pleas, it is said CHIEF JUSTICE GIBBS confined his observation to the case of a defendant claiming his discharge under a written instrument, to which he, with precision, refers. The weight of English authorities, therefore, is not much in favor of allowing a plaintiff to disprove the special mode of payment alleged by the defendant; and we are satisfied that, whether countenanced by these authorities or not, it is opposed to principle; and we feel disinclined to make further inroad upon a statute of great public utility, especially when judges are constantly lamenting that too many exceptions have been made already. 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 statement 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, and not on the 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 the 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." Hancock v. Bliss, 7 Wend. (N. Y.) 267; Moore v. Columbia Bank, 6 Pet. (U. S.) 86; Gaylord v. Van Loan, 15 Wend. (N. Y.) 308; Fillet v. Linsey, 6 J. J. Mar. (Ky.) 337; Purdy v. Austin, 3 Wend. (N. Y.) 187; Cambridge v. Hobart, 10 Pick. (Mass.) 232; Clark v. Dutcher, 9 Cow. (N. Y.) 674; Tichenor v. Colfax, 4 N. J. L. 153; Exeter Bank v. Sullivan, 6 N. H. 124; Russell v. Copp, 5 id. 154; Gold v. Whitcomb, 14 Pick. (Mass.) 188; Bailey v. Bailey, 14 S. & R. (Penn.) 195; Brackett v. Mountfort, 12 Me. 72; Frey v. Kirk, 4 G. & J. (Md.) 509.

1 Morgan v. Walton, 4 Penn. St. 32; Suter v. Sheeler, 22 id. 308. In Wessner v. Stein, 97 Penn. St. 322, a question as to the quality of an acknowledgment sufficient to take a case out of the statute was

to which it applies, and must be consistent with a promise to pay.' In McClelland v. West, 59 Penn. St. 487, it was held that the words, "I agree to settle this bill," were not sufficient to remove the statute bar, as they only amounted to a promise "to examine and adjust it," and did not warrant the implication of a promise to pay. When a debtor, on being presented with a bill, said, "I will attend to it," it was held not to amount to an acknowledgment of, or promise to pay, the debt. Marqueze v. Bloom, 22 La. An. 328. But in Bliss v. Allard, 49 Vt. 350, a letter in which the debtor spoke of a "settlement," and expressed a willingness "to leave it out to be settled," but thought they had better settle it themselves, was held sufficient. In Wessner v. Stein, 97 Penn. St. 322, the court, by MERCUR, J., say, "The debt is not destroyed by the statute of limitations, but the right of action or remedy is gone. When that is restored, the declaration is still on the original contract, and not on the acknowledgment as a new promise; such acknowledgment is but a waiver of the statutory defence." Suter v. Sheeler, 22 Penn. St. 310. Where a debtor gives to his creditor the note of a third person, payable at a future day, as collateral security for a debt upon which the statute has begun to run, it operates as an acknowledgment of the whole debt, the same as a part payment in money would, but it only operates to suspend the statute and start it anew, from the time of the delivery of such note; and a payment upon such note by the person against whom the note so given as collateral security exists does not operate as a payment by the debtor himself, or have the effect to renew the principal debt. Smith v. Ryan, 66 N. Y. 352. original debt must first be established, then a clear, distinct, and unequivocal acknowledgment made within six years is sufficient to remove the statute bar. MERCUR, J., in Wessner v. Stein, 97 Penn. St. 326; Watson v. Stein, 76 id. 121;

The

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Palmer v. Gillespie, 9 W. N. C. (Penn.) 535. In Louisiana, it is held that parol evidence is admissible to prove an knowledgment of a debt before the statute has run thereon, Bernstein v. Hicks, 21 La. An. 179; Harrell v. White, 21 id. 195; and while the debtor is alive. But it is held to be inadmissible to prove an acknowledgment of a party deceased for the purpose of establishing liability against his estate. Succession of Hillebrandt, 21 La. An. 350. So, too, it is held inadmissible to establish a renunciation or waiver of the defence of the statute after the debt is harred. Offut v. Chapman, 21 La. An. 293. In Iowa, by sec. 1670 of the code, an admission that a debt is due and unpaid is given the same effect to take it out of the operation of the statute as a new promise.

1 Black v. Reybold, 3 Harr. (Del.) 528; Lee v. Polk, 4 McCord (S. C.), 215; Lord v. Shaler, 3 Conn. 131. As that "it is just and unpaid." Beasley v. Evans, 35 Miss. 192. "The debt is a just and honorable debt, and I do not consider it ont lawed." Estate of Wetham, 6 Phil. (Penn.) 161.

"It is a debt which I shall have to pay, and intend to pay." Hall v. Creswell, 12 G. & J. (Md.) 36. A bare acknowledg ment of a debt made before the statute has run, Rodrigue v. Fronty, 2 Brev. (S. C.) 31; Hazlebacker v. Reeves, 9 Penn. St. 258, admitting that a note is genuine, though at the same time he refused to pay it, has been held sufficient, Cobham v. Mosley, 2 Hayw. (N. C.) 6; Cobham v. Administrators, 2 id. 6; but this cannot be regarded as accurate, because it expressly rebuts any promise. But an acknowledgment that certain notes against him exist in the plaintiff's favor, but that he has an account to go against them, with a promise to call in a certain time and have the notes and accounts settled, is sufficient. Chapin v. Warden, 15 Vt. 560. So a statement that he is willing to settle the claim if established, but accompanied with a denial that it can be established, has been held

sufficient, if the claim is established. Paddock v. Colby, 18 Vt. 485. The general rule is that an acknowledgment, to take a debt out of the statute, must be an unqualified acknowledgment of a previous subsisting indebtedness which the party is willing to pay, Weaver v. Weaver, 54 Penn. St. 152; Jackson v. People, 40 Ill. 405; Conover v. Conover, 1 N. J. Eq. 403; Turner v. Martin, 4 Robt. (N. Y.) 661; Allen v. Webster, 15 Wend. (N. Y.) 284; Waples v. Layton, 3 Harr. (Del.) 508; Stafford. Richardson, 15 Wend. (N. Y.) 302; Horlbeck v. Hunt, 1 McMull. (S. C.) 197; Sherman v. Wakeman, 11 Barb. (N. Y.) 254, 9 N. Y. 85; and that the debt continues due at the time of the acknowledgment, Mellick v. De Seelhorst, 1 Ill. 171; Bangs v. Hull, 2 Pick. (Mass.) 368; Barlow v. Bellamy, 7 Vt. 54; French *. Frazier, 7 J. J. Mar. (Ky.) 425; Russell t. Goss, M. & Y. (Tenn.) 270; Wetzell v. Bussard, 11 Wheat. (U. S.) 310; Belles v. Belles, 12 N. J. L. 339; Purdy v. Austin, 3 Wend. (N. Y.) 187. But the doctrine of Paddock v. Colby, ante, is sustainable, upon the ground that what was said by the debtor was not a mere acknowledgment, but an express promise to pay the debt, if any existed; in other words, an express, conditional promise to pay, and the condition is satisfied, and the promise made absolute when the debt is established. An admission that a note sued on was made by the defendant, but that he supposed it was paid by a joint maker, which he could prove, has been held sufficient. Dean v. Pitts, 10 Johns. (N. Y.) 35; Mosher v. Hubbard, 13 id. 510. But see Bell v. Rowland, Hard. (Ky.), 301, where an acknowlelgment by the defendant was that he once owed the debt, but he supposed his brother paid it, and if his brother had not paid it, he owed it yet, was held insufficient to remove the statute bar. See also Gardner v. Tudor, 8 Pick. (Mass.) 206. In Brackett . Mountfort, 12 Me. 72, an acknowledgment that the "debt was once due, but that he had paid it years before by having an account against him," was held not suffi cient, although the defendant filed no account in offset, and offered no proof that

he ever had an account against the plaintiff. In Penn v. Crawford, 16 La. An. 255, the defendant stated that "he thought the note had been settled, but if not, he would arrange it." Upon a later occasion he said "he would see the plaintiff and settle the amount of the note;" and it was held that this evidence was too doubtful, if uncorroborated, to interrupt the statute. In a Maryland case, Frey v. Kirk, 4 G. & J. (Md.) 509, the maker of a note, when shown it, and asked if it was his, replied "yes;' but when asked what arrangement he could make of it, replied, "As to that I cannot say;" and upon being told that if it was not settled it would be sued, said, "You may save yourself the trouble, as I have taken the benefit of the insolvent law;" it was held that this could not be con strued into an existing indebtedness, so a to remove the statutory bar. See also Danforth v. Culver, 11 Johns. (N. Y.) 146, where the defendant admitted the execution of the note by him, but said that it was outlawed, and he intended to avail himself of the statute; and it was held not a sufficient acknowledgment to take the case out of the statute. See also Smith v. Freel, Add. (Penn.) 291, where an admis. sion of the genuineness of a note, accom panied with a statement that he had paid it, was held not sufficient. A letter which acknowledges a subsisting indebtedness is sufficient to take the case out of the statute, as it is in writing and signed by the party to be charged, Chace v. Higgins, 1 T. & C. (N. Y.) 220. But a letter in effect acknowledging the existence of an indebtedness, and proposing a compromise, but distinctly avowing a determination not to pay if the compromise is rejected, will not remove the statute bar, Creuse v. Defiganiere, 10 Bosw. (N. Y.) 122; nor is an admission of the original indebtedness in an answer under oath, denying the defendant's liability to pay it, Com. Mut. Ins. Co. v. Brett, 44 Barb. (N. Y.) 489. See also Bloodgood v. Bruen, 8 N. Y. 362, where such an admission in an answer, filed to a bill in equity by a third person, was held not sufficient. In Clementson v. Williams, 8 Cranch (U. S.), 74; MARSHALL, C. J.,