Exchequer, MARTIN, B., dissenting,' to be a sufficient acknowledg ment. In a Wisconsin case the defendant wrote as follows: "I think I see my way clear to pay you the $200 and interest I owe you. I am in hopes another two years will enable me from my present income to clear off all pressing debts. Rest assured that not a day of pecuniary freedom will pass over my head without you hearing from me ;" and it was held insufficient to take the debt out of the statute. Under this head may properly be embraced offers of compromise. If a debtor in whose favor the statute has run offers to compromise the claim by paying a smaller sum than is due, or to pay it in a certain kind of property, the offer does not operate as an acknowledgment of the debt, so as to remove the statutory bar, even to the extent of the sum offered, unless the offer is accepted when made; and if accepted, only relieves the operation of the statute to the extent of the offer.3 This rule was well illustrated in a Connecticut case. In that case, after the statute had run the debtor was reminded of the note by the plaintiff, and of the fact that it had not been paid, and he said, "I will give you a ton of coal for it," which offer was not accepted, and it was held that it did not relieve the debt from the operation of the statute. "The offer of the defendant," said SEYMOUR, J., "to give a ton of coal 1 He said: "In my opinion this letter is not a sufficient acknowledgment. I consider the law to be correctly laid down in 2 Wms. Saunders, 64 h, note c, in the note to Hodsden v. Harridge, that 'an acknowledgment operates only as evidence of a promise to pay; and accordingly that upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may, and ought to be, implied; but that where the party guards his acknowledgment, an implication will not arise. Thus, a refusal to pay will prevent the implication of a promise arising from such an acknowledgment; and a conditional promise to pay when able will prevent an absolute promise from being implied.' I think the proper mode of deciding questions of this nature is, not by discussing other documents, but by giving a fair and candid construction to the one which is before us, and seeing whether, so construed, it contains a promise to pay. Now, if the letter stopped at the words 'to get on,' it is impossible to say that there would be any promise or acknowledgment; and when the debtor further says, 'but I will try to pay you a little at a time if you will let me,' this means (the letter being written before the debt was barred), if you will not sue me I will do my best to pay you what I can. The fair and reasonable construction is, I think, that the debtor engages that he will do his best to endeavor to pay, that he will pay as he is able; and this excludes the implication of the absolute promise sued upon;" and we submit that this opinion is in harmony with the English cases previously cited. 2 Pierce v. Seymour, 49 Wis. 94. 8 Mumford v. Freeman, 8 Met. (Mass.) 432; Bell v. Morrison, 1 Pet. (U. S.) 351; Smith v. Eastman, 3 Cush. (Mass.) 355; Pearson v. Harper, 11 La. An. 184; Bates v. Bates, 33 Ala. 102; Lucas v. Thorington, 5 id. 504; Pearson v. Darrington, 33 id. 227; Parsons v. Northern, &c., Iron Co., 38 Ill. 430; Slack v. Norwich, 32 Vt. 818; Neal v. Abbott, 2 Cranch (U. S. C. C.), 193; Glensey v. Fleming, 4 D. & B. (N. C.) L. 129; Ash v. Hayman, 2 Cranch (U. S. C. C.), 452; Bank of Columbia v. Sweeney, 3 id. 293; Creuse v. Defiganeure, 10 Bosw. (N. Y.) 122; Pool v. Rolfe, 23 Ala. 701; Morehead v. Gallinger, 9 Iowa, 519; Hicks v. Thomas, Dudley (Ga.), 218. 4 Currier v. Lockwood, 40 Conn. 349. for the note was not accepted. It was a mere offer of compromise, and clearly no acknowledgment to take the case out of the statute." In a Missouri case1 the defendant wrote the plaintiff that he had a certain sum of money," and I propose giving it all up to my creditors, — that is, the creditors of Lea & Rubey, to be equally distributed between them, provided they will entirely release me from further obligation." The plaintiff did not accept the offer, and it was held that it did not take the debt out of the statute. "Instead of an admission," said WAGNER, J., "it was an offer of compromise, and a promise to pay part for the whole, and as the offer was not accepted the liability did not accrue." In a North Carolina case the defendant offered to pay the note in suit in Confederate notes or in bank-bills, but the plaintiff refused either, and demanded gold. The court held that this was not a sufficient acknowledgment to take the debt out of the statute. "The act of the defendant's testator," said DICK, J., "was a mere offer to pay in the currency then in circulation, and no intention was in any way shown of assuming or renewing the obligation. We think the proper inference to be drawn from the evidence is, that the defendant's testator was willing to pay the debt in the currency of the country, which was then abundant; and as that was refused, his purpose was to rely upon the statute of limitations." 4 In a Massachusetts case the maker of a note agreed with the holder to pay him a certain proportion of the amount due in full discharge of the note, and afterwards made and signed a note for the amount so promised, and offered it to the holder in payment of the first note. The holder refused to receive it, and it was held that that was not such an acknowledgment as took the first note out of the statute. In a New Hampshire case, a few days before the statute had run upon a claim, the plaintiff sent to the defendant a proposition that if he would make her a wagon worth $75 she would give up the note. The defendant said that he could not make her such a wagon then, but would do so next year. The plaintiff made no reply to the defendant's proposition to make the wagon the next year, and the court held that the promise was not binding, and did not suspend the operation of the statute upon the note. It is unnecessary to multiply illustrations upon this point, as any dif ferent doctrine from that stated in the text would be subversive of the principles upon which the doctrine relative to acknowledgments rests. A distinction is observed between the construction put upon a letter written or an acknowledgment made a short time after the debt has 1 Chambers v. Ruby, 47 Mo. 99, 4 Am. Rep. 318. 2 Simonton v. Clark, 65 N. C. 525. Smith v. Eastman, 3 Cush. (Mass.) 355. In Price v. Price, 34 Iowa, 401, it was held that a promise to pay a debt already barred by the statute which substitutes a different mode of payment, or that is not founded on a new consideration, is not sufficient to remove the statute bar. 4 Batchelder v. Batchelder, 48 N. H. 23. been contracted, and one written after the debt is barred. In the latter case, effect is properly given to anything which savors of a condition; but where a person, being then a debtor who has no right to time, writes a letter asking for time, the reasonable construction is, that it is no condition, and that the writer has no intention of imposing a condition.1 Thus, in the case last cited, before the statute had run upon the claim, the defendant wrote the plaintiffs as follows: "In reply to your statement of account received, I am ashamed the account has stood so long; I must beg to trespass on your kindness a short time longer, till a turn in trade takes place, as for some time things have been very flat." This was held such an unconditional acknowledgment of the debt as to sustain an implied promise to pay the debt, and rebut the statutory bar.2 8 SEC. 79. By and to whom must be made. It was formerly held in England, as well as in the courts of this country, that an acknowledgment of a debt to a stranger was as effectual to remove the statute bar as one made to the creditor himself. But under the modern rule, that an acknowledgment must be such as fairly raises an implied promise to pay the debt, it follows as a matter of course that the acknowledg 1 POLLOCK, C. B., in Cornforth v. Smithard, 5 H. & M. 14. 2 Godwin v. Culley, 4 H. & M. 373; Sidwell v. Mason, 2 id. 306; Eicke v. Nokes, 1 Moo. & Ry. 359. In Evans v. Jones, 9 Exch. 282, it appeared that in 1845 J. lent the plaintiff £200, on the security of the joint and several promissory note of himself and two sureties. Between November, 1845, and February, 1847, J. bought of the plaintiff goods to the amount of £17. In July, 1847, the plaintiff remitted J. £10 for interest due on the note, and at the same time sent his bill for the goods. J. wrote in answer: "I beg to acknowledge the receipt of £10 cash, and the bill amounting to £17, both of which sums I have placed to your credit. I have enclosed your bill; receipt it, and return it to me by post." It did not appear whether the plaintiff had sent back the bill receipted. In February, 1853, and after the death of J., the promissory note was paid by one of the sureties, without taking credit for the £17. In May, 1853, the plaintiff sued the administratrix of J. for the £17, when she pleaded the statute of limitations. It was held that the above letter was a sufficient promise, within the 9 Geo. IV. c. 14, to take the case out of the statute of limitations. In this case it was urged that, unless the plaintiff receipted the bill as directed in the letter, the letter could not be regarded as an acknowledgment of the debt stated in it, as it was a mere offer to pay the bill by giving credit for the amount, and went for nothing unless accepted, under the rule in Ashby v. James, 11 M. & W. 542; but the court repudiated this claim. "We are bound," said POLLOCK, C. B., "to put a reasonable construction on this letter. Then, did not the person who wrote it mean to say, in substance, 'I have received the goods; I owe you a debt in respect to them which I will pay you; and I propose, as a convenient mode of payment, to set off the amount against the debt which you owe me'?... It was never meant by the letter that there should be a peculiar mode of payment which should do away with the effect of the unqualified acknowledgment." 8 Peters v. Brown, 4 Esp. 46; Halliday v. Ward, 3 Camp. 32; Clark v. Hougham, 2 B. & C. 149; Mountstephen v. Brooke, 3 B. & Ald. 141; Yea v. Fouraker, 2 Burr. 1099. 4 Newkirk v. Campbell, 5 Harr. (Del.) 380; St. John v. Garrow, 4 Port. (Ala.) 223; Oliver v. Gray, 1 H. & G. (Md.) 204; Whitney v. Bigelow, 4 Pick. (Mass.) 110; Minkler v. Minkler, 16 Vt. 194. ment or promise must not only be made by a person legally competent to contract,' but must also be made to the creditor himself, or some person duly authorized to act for him in that regard, so that a new contract, resting upon the old one for its consideration, may be set up in reply to the statute, if it is pleaded by the defendant; 2 and if it is made 1 Hannum's Appeal, 9 Penn. St. 471; Ward v. Hunter, 6 Taunt. 210; Tanner v. Smart, 6 B. & C. 603; Putnam v. Foster, 1 id. 246; Chapman v. Dixon, 4 H. & J. (Md.) 527; Atkins v. Tregold, 2 B. & C. 23; Quarles v. Littlepage, 2 H. & M. (Va.) 406; Fisher v. Duncan, 1 id. 563. 2 Ringo v. Brooks, 26 Ark. 540; Tusen . Camblin, 1 Ill. App. 424; Niblack v. Goodman, 67 Ind. 174; McGreer v. Forsyth, 80 Ill. 96; Faison v. Bowdoin, 76 N. C. 425; Walker v. Albee, 80 Ill. 47; Kirby v. Mills, 78 N. C. 124; Trousdale v. Anderson, 9 Bush (Ky.), 276; Reeves v. Corell, 19 Ill. 189; Cape Girardeau Co. v. Harkinson, 58 Mo. 90; Sibert v. Wilder, 16 Kan. 176; Carroll v. Forsyth, 69 Ill. 127; Pearson v. Darrington, 32 Ala. 227; Fleming v. Stanton, 74 N. C. 203; Parker . Shuford, 76 id. 219; Zacharias v. Zacharias, 23 Penn. St. 452. The acknowledgment from which a promise to pay a debt can be implied must be made to the creditor or some person acting for him, and not to a stranger. Bloodgood v. Bruen, 8 N. Y. 362. PARKE, B., in Badger v. Arch, 10 Exch. 333. Prior to the adoption of the new theory in relation to acknowledgments, initiated by Tanner v. Smart, ante, an acknowledgment made to a stranger was held just as operative to remove the bar of the statute as though it had been made to the creditor himself, the only question being whether it was made in earnest or in jest. In Moore v. Bank of Columbia, 6 Pet. (U.S.) 86, the defendant, being at a tavern with a party of friends, said to them that he had paid off every debt except one fivehundred-dollar note which he owed to the bank, and could pay off at any time; and it was held that this was not sufficient to remove the statute bar, because the place and the occasion and manner in which the declaration was made were such as to repel the inference that it was intended as a serious admission that the debt still existed against him so as to impose a duty upon him to pay it. See Wainman v. Kynman, 1 Exch. 118, where this was held a question for the jury. In England, prior to the passage of LORD TENTERDEN's act, and while the theory as to presumptions arising from the statute prevailed, it was held to be immaterial whether the acknowledgment or promise was made to the creditor or a stranger, and such was the rule in this country; and as that statute, upon a fair construction, did not affect this question, the change in the rule is due entirely to a change in the theory of the law in this regard. Illustrative of this rule is Mountstephen v. Brooke, 3 B. & Ald. 141, in which, in a deed made between the defendants and a third person, admission was made by the defendants of a debt due to the plaintiffs, who were strangers to the deed, and it was held sufficient; ABBOTT, C. J., remarking, that the legal effect of an acknowledginent, even though made to a stranger, was itself sufficient to raise a promise to pay. Again, in Halliday v. Ward, 3 Camp. 32, where the defendant, a Quaker, wrote to his father, who was a co-obligor with him on a promissory note, as follows: "With regard to Halliday's money, thou must settle it thyself," LORD ELLEN BOROUGH said that the letter acknowledged the existence of the debt, and that the promise to pay (although the debt was not acknowledged to the plaintiff) was raised by law. So, in Clark v. Hougham, 2 B. & C. 149, an admission to one of the several parties was held to inure for the benefit of all for the purpose of the statute of limitations; and though it was suggested that the admission was made to one as the agent of the others, it was expressly stated by BAYLEY, J., that agency was not necessary to be proved. So far it might seem that, as well under the new theory of acknowledgment as under the old, an admission to a third person was deemed sufficient, as it might be gathered from these remarks that a promise to pay a creditor may be implied from an admission not made to him personally. There are, however, a large num 3 to an agent of the creditor, in order to make it operative it must appear that the debtor at the time knew that the person to whom the acknowledgment or promise was made was acting as the agent of the creditor, or it will have no more effect than it would have if made to a stranger.1 But it has been held that a promise or acknowledgment made to the creditor or his authorized agent will inure to the benefit of his assignee.' So, too, the acknowledgment must be made by a person who is legally competent to contract; because, as the acknowledgment, to be operative, must be such as to raise a new contract to pay, resting upon the old debt for its consideration, it follows as a matter of course, that at the time when the acknowledgment or promise was made the party must have been competent to contract, so that he could be legally bound; and if he was resting under any legal disability at the time, it will be inoperative; and, except where the statute otherwise so provides, where an acknowledgment in writing is required, it is held that the acknowledgment must be made by the debtor personally. Where, however, the statute does not require that the acknowledgment should be made in writing and signed by the party to be charged, and it is not made by the debtor in person, it must be made by some person by him thereto legally authorized. But, under the statute of James, it was held that the acknowledgment might be made either by the defendant in person or by his agent, and power to acknowledge might be implied. Thus, in one case, where an agent was employed to pay money for work done, and the workmen, with his consent, were referred to him for payment, it was held that an acknowledgment or promise made by him was suffi cient to remove the statute bar; and in another case,' LORD ELLENBOROUGH lays down the general rule, that if a man refers another upon any particular business to a third person, he is bound by what this third says or does concerning it, as much as if that had been said or done by himself. Under this rule an admission by a wife, who was accustomed to conduct the business of her husband, was held sufficient to take the ber of more recent judicial decisions on the other side, and holding the only consistent doctrine that such an acknowledgment is not sufficient. Thus, in Godwin v. Culley, 4 H. & M. 375, MARTIN, B., distinctly laid down that an admission to a third person is not sufficient for the purpose, and BRAMWELL, B., expressed a similar opinion. And again, in Grenfell v. Girdlestone, 2 Y. & C. 662, ALDERSON, B., expressly raises and decides the point. "If," says he, "a man were to write a letter to a third person acknowledging the debt, it would not take it out of the statute;" and the doctrine there announced has ever since prevailed in that country, and is the rule prevailing in this. Kyle v. Wills, 13 Penn. 2 Pinkerton v. Bailey, 8 Wend. (N. Y.) 600. But see Cripps v. Davies, 12 M. & W. 159. 8 Kline v. Guthart, 2 Penn. 490; Richmod, Petitioner, 2 Pick. (Mass.) 567. Hyde v. Johnson, 3 Scott, 289; Pott v. Clegg, 16 M. & W. 321; Gibson v. Baghatt, cited in Whippy v. Hillary, 5 C. & P. 209. Ringo v. Brooks, ante. 6 Burt v. Palmer, 5 Esp. 145. |