simply renders a writing necessary as a means of proof, and does not effect any alteration in the legal construction to be put upon such acknowledgments or promises. In the language of TINDAL, C. J.,' they "merely require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable for the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, whether in a given case the written document amounts to an acknowledgment or promise, is no other inquiry than whether the same words, if proved, before the statute was enacted, to have been spoken by the defendant, would have had a similar operation and effect." "12 It appears also that the words "promise" or "acknowledgment" in the statute mean the same thing. The terms of a lost acknowledgment in writing may be proved and the acknowledg ment supported by parol evidence.* 5 SEC. 85. Sufficiency of. Instances. - Under these statutes any writing, signed by a defendant, admitting that a debt is due and unpaid, whether under a bond, deed, or simple contract, will revive the remedy upon the contract or obligation, although there is not upon its face any express promise to pay it; but there must be upon the face of the writing enough to warrant the implication of a promise to pay, as if the words used are simply "I QU £275," that is sufficient, because from the absolute acknowledgment of a debt, unaccompanied by any qualifying observations, a promise to pay on request may be inferred. If, however, there is anything on the 6 1 Haydon v. Williams, 7 Bing. 16. 2 POLLOCK, C. B., Godwin v. Culley, 4 H. & N. 373. See Moore v. Columbia Bank, 6 Pet. (U. S.) 86, and remarks of SHAW, C. J., in Sigourney v. Drury, 14 Pick. (Mass.)389; Dickinson v. Hatfield, 5 C. & P. 46. Where the statute requires that an acknowledgment or new promise shall be in writing, a verbal acknowledgment of the correctness of an account, although it may have the effect of making it an account stated, will not be sufficient to suspend or repeal the statute. Floyd v. Pearce, 57 Miss. 140. And in Mississippi even a written promise to pay part of a debt, without any promise to pay the balance, as "I am going to Aberdeen to-morrow and will send fifty dollars, which is all I can spare at present," is held not a sufficient acknowledgment of the debt to take it out of the statute. Eckford v. Evans, 56 Miss. 18. And in that State it is also held that from the mere fact of part payment the jury are not authorized to infer a promise to pay the rest. Smith v. Westmoreland, 12 S. & M. (Miss.) 663; Davidson v. Harrison, 33 Miss. 41. And in no case can a part payment that is enforced by law be treated as sufficient to remove the statute bar. Davies v. Edwards, 15 Jur. 1044. But in Fiske v. Hibbard, 45 N. Y. Superior Ct. 331, a letter from a debtor to a creditor as follows: "I am aware that I owe you, for money borrowed. As 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 want to act honestly towards everybody," was held sufficient as an acknowledgment of whatever indebtedness actually existed at the time it was made. 3 Haydon v. Williams, ante. 4 POLLOCK, C. B., in Godwin v. Culley, ante. 5 Linley v. Bonsor, 2 Bing. N. C. 241. 6 Evans v. Simon, 9 Exch. 285. 7 Smith v. Thorne, ante; Dobbs Humphrey, 10 Bing. 449. 8 66 face of the instrument to repel the inference of a promise to pay, the rule expressum facit cessare tacitum applies; no promise will be inferred, and the acknowledgment will not enable the plaintiff to ground an action thereupon. Any admission of a liability which stops short of an admission of a debt being due at the time of the making of the admission, will not suffice for the maintenance of an action, such as a letter saying, "Doubtless I did owe the money, but I have already paid it;" or, "I admit the debt, but I have got a set-off;" or, "The debt is barred by the statute of limitations." 2 If a man admits that a signature to a bill or note, or other contract in writing, is his signature, but at the same time says it was never worth anything, and that he was never liable upon the contract, this is no admission or acknowledgment. If the defendant says, in writing, "I admit the debt," that is enough; but if he says, "I admit the debt, but I have not made up my mind to pay," or I owe the money, but I cannot tell when or how I am to pay it," or "I do not intend, or cannot afford, to pay the debt," such an acknowledgment negatives the inference of a promise to pay, and will not consequently revive the cause of action. The making and signing of a promissory note by the debtor, and tendering it to the creditor for the amount of the debt, or in lieu of another note, but which is not accepted by the creditor, is not such a promise in writing as takes the debt out of the statute; 5 nor, indeed, under any circumstances can any paper, executed by the debtor but not delivered to the creditor, have the effect to remove the statute bar, unless it is executed and used by the debtor in such a way as to show that he intended it as a recognition of the debt, upon the faith of which the creditor might rely, so as to estop him from setting up the statute; and the insertion of a debt in a schedule of debts owing by an insolvent debtor, filed and sworn to by him in proceedings in insolvency, does not operate as an acknowledgment of the debt as a subsisting liability against him so as to remove the statutory bar; and, too, the acknowledgment must be made to the creditor in person, or his agent or legal representative. 1 8 Bryan v. Horseman, 5 Esp. 81; Birk ting all the creditors in statu quo, it was . Guy, 4 id. 184. 2 Swan v. Sowell, 2 B. & Ald. 761; Boydell v. Drummond, 2 Camp. 161. Rowcroft v. Lomas, 4 M. & S. 459. held that the last note did not operate as a new promise in writing so as to remove the statute bar; but it was intimated by the court that the rule would be otherwise if the note had been merely delivered up * Brigstocke v. Smith, 1 Cr. & M. 485; to the debtor for the purpose of leaving the A'Court v. Cross, 3 Bing. 329. 5 Smith v. Eastman, 3 Cush. (Mass.) 355. See also Sumner v. Sumner, 1 Met. (Mass.) 594, where, after the debtor had made and delivered to the creditor a new note in lieu of one already barred by the statute, the creditor delivered up the note to the debtor again for the purpose of put question of the amount open, and not the question of the debtor's indebtedness. 6 Allen v. Walton, 70 Mo. 138; Edwards v. Culley, 4 H. & N. 378; Merriam v. Leonard, 6 Cush. (Mass.) 151. 7 Duguid v. Scholfield, 32 Gratt. (Va.) 803. 8 Richardson v. Thomas, 13 Gray 2 SEC. 86. Acknowledgment must clearly refer to the Particular Debt. The acknowledgment, &c., in writing, required by these statutes, must clearly relate to the debt in suit, and must be such that a promise to pay the debt can be implied; and where a letter from the debtor was relied upon, which merely stated, "My brother says you are intending to send to me. As I do not recollect the date or the amount of the indorsements, I would thank you to send me a statement of it. I have been expecting to visit you for some time past. After hearing from you, if I should not be able to visit you soon, I will write again," it was held not sufficient, because it did not identify the note, or amount to a promise to pay it.1 In another Massachusetts case, the debtor wrote the creditor as follows: "Next week I shall be able to send in to C. T. a statement of my affairs. He will show you the whole of my property, and ask for a discharge. I should have done this before, but have been obliged to work for my board. I have large demands, &c., but I cannot collect them, and think I never shall;" and it was held not sufficient to take the debt out of the statute. A letter in which the debtor stated, "I feel ashamed of it standing so long," was held insufficient.* The constant replication ever since the statute to let in evidence of an acknowledgment is that the cause of action accrued, or that the defendant made the promise in the declaration mentioned within the six years; and the only principle upon which it can be held to be an answer to the statute is, that an acknowledgment is evidence of a new promise, and as such constitutes a new cause of action, and supports and establishes the promise which the declaration states. Upon this principle, whenever the acknowledgment supports any of the promises in the declaration, the plaintiff succeeds; when it does not support them, though it may show clearly that the debt never has been paid, but is still a subsisting debt, the plaintiff fails. The replication in those States where (Mass.), 381; Roscoe v. Hale, 7 id. 274; 99, the debtor, some time after the note Stodard v. Doane, 7 id. 387. 1 Gibson v. Grosvenor, 4 Gray (Mass.), 606. In Leigh v. Lithicum, 30 Tex. 100, a letter as follows, "You said something about a note you have. You are apprised I have an offset, &c. When I see you we will adjust the matter, and whatever is due on the note I will pay," of itself, in the absence of any other evidence to apply it to the note in suit, was held insufficient; but the rule generally adopted is that, if the writing is indefinite as to the debt in question, parol evidence is admissible to explain it, as any other latent ambiguity. 2 Bailey v. Crane, 21 Pick. (Mass.) 323. In Hanney v. Tobey, 15 Pick. (Mass.) in suit had become due, executed an indenture between himself and his creditors, by which he assigned his property in trust for such of his creditors as should become parties to the indenture, and the creditors covenanted to discharge him from all claim or demand, action or right of action, for the space of seven years, upon receiving their respective portions of the property. The plaintiff executed the indenture. It was held that the indenture did not suspend the statute or keep the debt on foot. See also, to same effect, Smith v. Eastman, ante. 4 Wilcox v. Williams, 5 Nev. 206. 5 Tanner v. Smart, 6 B. & C. 606. a written acknowledgment is required must now specify that the acknowledgment was in writing, signed by the debtor.1 SEC. 87. Distinction between Absolute and Qualified Promises, &c. Illustrations. When the plaintiff's declaration, as is usually the case, is framed on the original absolute promise to pay on request, any writing signed by the party within six years of the commencement of the action, showing an express or implied absolute promise to pay the debt, or satisfy the claim, will suffice to sustain the action.2 But when the defendant's promise to pay is qualified and conditional, the condition must be shown to be accomplished, and the promise to have become absolute, so as to support the absolute promise laid in the declaration. The amount of the debt may be shown by parol, and need not appear upon the face of the writing; and if the defendant admits the debt, but objects to the amount claimed, the law will infer from the admission a promise to pay what, upon investigation, shall appear to be due; and the admission, consequently, will give rise to a cause of action, and be a bar to the statute. The following letters and writings have been held not to be sufficient to bar the statute: "I am in daily expectation of being enabled to give a satisfactory reply respecting the demand of Messrs. Morrell against me." "I will see Davis; I have no doubt he has paid it; if by chance he has not paid it, it is very fit it should be."" I have now a hope that before a week I shall have it in my power to pay a portion of the debt, when we shall settle about the liquidation of the balance."8 "Plaintiff's claim, with that of others, shall receive the attention that, as an honorable man, I consider them to deserve; it is my intention to pay them, but I must be allowed time to arrange my affairs, and if I am proceeded against, any exertion of mine will be rendered abortive." " "I give the above accounts to you, so you must collect them, and pay yourself, and you and I will then be clear." 10 "I have hitherto deferred writing to you regarding your demand upon me in consequence of some family arrangements, through which I should be enabled to discharge your account. I have now the satisfaction to inform you that an appointment of sufficient funds has been made, for the purpose of which H. Y. is one of the trustees, to whom I have given in a statement of your account, amounting to £98 8s. Some time must elapse before the trustees can be in cash to make these payments, but I have Mr. Wy's authority to refer you to him for "Bring the bill; I shall be at your ser any further information.”1 vice." "Send me your account. If it is just, I will settle it."2 "I hereby charge my reversionary interest, when the same shall fall into possession and be rendered available to my use, with the payment of £108 8s. 9d. to Mr. Martin, to carry lawful interest."3 "I am much surprised at receiving a letter this morning for the recovery of your debt. I candidly tell you, once for all, I shall never 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.” 4 An agreement in writing, which does not acknowledge a debt, or contain a promise to pay the same, except upon failure to produce a certain receipt, and which expresses no consideration, has been held insufficient to remove the statutory bar. The rule in all cases being that, where a promise is conditional, there can be no recovery unless the condition is fulfilled, or there is a new and sufficient consideration for the promise; and in a case of this character no promise can be implied, because there is an express denial of liability, and the debtor would certainly be entitled to the whole statutory period in which to produce his receipt. 6 7 SEC. 88. Promise, &c., must be definite. Amount need not be stated.- In a Georgia case, in order to establish a suspension of the statute, the plaintiff introduced a letter from the defendant as follows: "Gentlemen, — In reply to your favor of the 22d instant, you will please to withdraw your draft of $314.37 on me, as I cannot pay for the present. As soon as I have the money, I shall remit;" and it was held too indefinite to avoid the statutory bar as against the account, or to sustain an action. And, generally, in the case of written acknowledgments, as in parol, of which numerous illustrations have already been given, the new promise must be direct and positive; and if it is dependent upon an acknowledgment, the acknowledgment must be unqualified, of a subsisting debt, which the debtor is liable and willing to pay. The exact amount of the indebtedness need not be stated. If the debt is identified, the amount may be left open for future adjustment, or may be proved by parol. The mere mention of 400. 422. 197. 8 1 Whippey v. Hillary, 3 B. & Ad. 2 Spong v. Wright, 9 M. & W. 629. M. 5 Aldrete v. Demitt, 32 Tex. 575. 83 Penn. St. 356. It must be made to the party seeking its benefit, or to some one authorized to act for him, and without protest or claim of set-off. Teesen v. Camblin, 1 Ill. App. 424. 9 Hart v. Boyd, 54 Miss. 547. In Canton Female Academy v. Gilman, 55 Miss. 148, a letter as follows, "It would suit my convenience to execute my note for the balance due for rent, payable Jan. 1, 1877," was held too indefinite proof of an acknowledgment of the debt to take it out of the statute. |