Assumpsit(a) was brought by an executor upon a promise to his testator, to which the defendant pleaded the statute of limitations; and, upon evidence, it appeared, that after the death of the testator, and after six years elapsed from the time of the contract, the defendant owned the debt to the executor, and promised to pay it. But it was held that the action could not be maintained, the promise being made to the executor, and so

(a) Ld. Raym. 1101.

acknowledgment is evidence of a new promise then made, it must "be of a promise made by a person competent to make it, and to a person who is in existence to receive it. We have gone far "enough."-Ward & Ux. vs. Hunter, 6 Taunt. Rep. 210.

On the trial of an issue on the assumpsit of the testator within five years, an assumpsit of his Executor cannot be given in evidence, to prevent the operation of the Act of Limitations. Fisher's Exor. vs. Duncan & Al. 1 Hen. & Munf. Rep. 563. Quarles' Admr. vs. Littlepage & Co. 2 Hen. & Munf. Rep. 406. & vide Saltar vs. Admr. of Saltar, 1 Halst. Rep. 405.

An action was brought against Foster and Norris & wife, upon a joint promissory note made by Foster and Norris' wife before her marriage, and the promise was laid by Foster, and Norris' wife before her marriage, and defendants pleaded the Statute of Limitations, whereupon issue was joined: Held, that an acknowledgment of the note by Foster within six years, but after the intermarriage of Norris and wife, was not evidence to support the issue. tam vs. Foster, and Norris & wife, 1 Barnew. & Cress. Rep. 248. & vide Atkins' Exors. &c. vs. Tredgold & Al. Exors. &c. 2 Barnew. & Cress. Rep. 23. Tanner vs. Smart, 6 Barnew. & Cress. Rep. 603.

Pit

Where a declaration in assumpsit against an administratrix contained sundry counts, on promises made by the defendant's intestate,and a count,stating that the defendant administratrix aforesaid, after the death of the intestate accounted with the plaintiff, &c. and upon that accounting the intestate, was found indebted to the plaintiff in, &c. and that defendant, in consideration thereof, promised the plaintiff to pay him, &c. Held, that as it is not stated that the defendant promised as administratrix to pay, her declarations of her willingness to pay the claim if it was found to be correct, could not disprove her plea of the Act of Limitations. Chapman vs. Dixon's Administratrix, 4 Harr. & Johns. Rep. 527.

out of the issue. But it would have been otherwise, had the promise been made to the testator within six years.

And in a recent case, in the court of king's bench,(a) wherein assumpsit was brought upon the money counts, in all of which the promises were laid to be made to the intestate; to which the general issue and the statute of limitations were pleaded. And at the trial, before Lord Ellenborough, Ch. J. at the sittings after Michaelmas term, in the 43d Geo. III. at Guildhall, the only evidence given was, of an acknowledgment by the defen

dant since the death of the intestate, and within six [*190] years, of an old *existing debt, due to the intestate

more than six years before; a verdict was taken for the plaintiff, with leave to the defendant to move to set it aside, and enter a nonsuit; which was accordingly moved for by Gibbs, who observed, that though an implied promise to pay might be raised from the acknowledgement of the debt, yet it must be raised to a person living at the time when the acknowledgemnt was made, and could not refer back, by relation, to a period before the intestate's death; and if not, then the evidence could not apply to any of the counts of the declaration.

Lord Ellenborough, Ch. J. when cause was to have been shown, said, that the case of Green v. Crane, 2 Ld. Raym. 1101. was decisive in support of the objection, and that a nonsuit must be entered.

Park, for the plaintiff, admitted that that case was in point against him, if the court thought it had been properly ruled.

The rule was made absolute to enter a nonsuit.

(a) 3 East, 409.

Acknowledgment of a debt within six years, [1] though

[1] In the case of Barney vs. Smith, (4 Harr, & Johns. Rep. 495.) CHASE, Ch. J. delivering the Opinion of the Court, said; "The act of Limitations is predicated on the principle, that from "length of time a presumption is created that the debt has been "paid, and that the debtor is deprived of his proof by the death "of his witnesses or the loss of receipts. It is the design of the Act "of Limitations to protect and shield debtors in such a situation; "and consistent with this principle, and this view, the decisions "have been made, that the acknowledgment or admission of the "debtor will take the case out of the Act of Limitations, because "if the money is still due and owing, the defendant has not suffer"ed from lapse of time, nor has any inconvenience resulted to him "therefrom."-And in the same case, page 496, JOHNSTON, J. said, "The act of Limitations was never intended to prevent the recov"ery of debts really due, but to protect persons from old claims "when the evidence of their discharge, from length of time was "supposed to have been lost." "The admission of the debt re"moves all doubts as to its having been discharged, and the offer "to come to a settlement or reference, impliedly admits the party "to be in possession of the evidence and documents necessary for "such adjustments."

An inventory and affidavit of a debt made by an insolvent before a commissioner, in order to obtain his discharge (which is granted) under the insolvent act, is a sufficient acknowledgment to take the debt out of the Statute of Limitations. Bryar v. Willcocks, 3 Cow. Rep, 159. 164.-SAVAGE, Ch. J. delivering the Opinion of the Court, said, "It is certainly an admission that the note was due and "unpaid, and that will authorize us to presume a promise, unless "the acknowledgment is accompanied with expressions which "negative that idea. ( (Sands v. Gelston, 15 Johns. 511.)" & vide Bailey, Admx. &c. vs. Bailey, 14 Serg. & R. Rep. 195. Hudson vs. Cary, 11 Serg. & R. Rep. 10.

An acknowledgment of the debt, when it is not accompanied with a protestation against paying it, is evidence sufficient for the Jury to presume a new promise. Martin vs. Williams, Exor. &c. 17 Johns. Rep. 331. Johnson, Admr. &c. vs. Beardslee & Al. 15 Johns. Rep. 4. Dean vs. Pitts, 10 Johns. Rep. 35. Price vs. Boisselet, 9 Serg. & R. Rep. 131.

If the defendant on being arrested by the Sheriff, promises to settle with the plaintiff if he will give time for payment, it is a sufficient acknowledgment to prevent the operation of the Statute of Limitations. Sluby vs. Champlin, 4 Johns. Rep. 461.

not a promise, yet it is evidence of a promise ;(a) and

(a) 5 Mod. 426.

An acknowledgment by the defendant, within six years, that the plaintiff's demand was "justly due, and ought to be paid," is sufficient to take it out of the Statute of Limitations. Baxter, Admr. vs. Penniman, 8 Mass. Rep. 133.

The stating of an account, by the defendant, admitting the debt to be due to the plaintiff, was held to be a sufficient acknowledgment of the debt to take it out of the Statute of Limitations. Smith, Admr. &c. vs. Ludlows, 6 Johns. Rep. 267.

The case of Dean vs. Pitts, (10 Johns. Rep. 35,) was an action of assumpsit brought on two promissory notes made by the defendant and one Richmond, dated 5th November, 1793; the defendant pleaded non assumpsit and the Statute of Limitations. On the trial at the Rensselaer Circuit in 1811, it was proved that two years before, the defendant was shewn the notes and called upon for payment. The defendant admitted that he made the notes, and that they were given for an honest debt, but said they had been paid; that he had sent the money to Richmond, and supposed Richmond had paid the plaintiff; but if Richmond had not paid the notes, the defendant said he would pay them; that he would not plead the Statute of Limitations unless the money had been paid; and he thought he could make that appear. The jury found for the plaintiff and on a motion to set aside the verdict, the COURT said, "The defendant admits the debt, and does not pretend " he has paid it, but supposed his partner Richmond had paid it, "and he takes upon himself the burden of proving it, for he said "he thought he could make that appear. This was sufficient to take "the case out of the statute, and to cast upon the defendant the "necessity of proving payment; and though the Court might have "been induced to have looked with a very indulgent eye upon "the proof of the payment which might have been produced, "yet here none was attempted to be produced." The motion was denied.

The defendants in a deed between them and a third person, acknowledged, within six years, the existence of a debt due to the plaintiffs, who, however were wholly strangers to the deed. Held, that this was sufficient to take the case out of the Statute of Limitations. Mountstephen & Al. vs. Brooke & Al. 3 Barnew. & Ald. Rep. 141.

A recital in a deed, of the existence of the plaintiff's cause of

it is settled, that the slightest acknowledgement will be

action is good evidence to take a case out of the Statute of Limitations. King vs. Riddle, 7 Cranch's Rep. 168. Mountstephen & Al. vs. Brooke & Al. 3 Barnew. & Ald. Rep. 141. & vide Clark, Admx. &c. vs. Hougham, 2 Barnew. & Cress. Rep. 149.

An acknowledgment does not revive the old debt; but is evidence only of a new promise, of which the former debt is the consideration. Danforth vs. Culver, 11 Johns. Rep. 146. & vide Roosevelt vs. Marks, 6 Johns. Ch. Rep. 290. Wetzell vs. Bussard, 11 Wheat. Rep. 315. Bell vs. Morrison & Al. 1 Peter's Rep. (Sup. Ct. U. S.) 374. Jones & Al. Exors. &c. vs. Moore, Admr. &c. 5 Binn. Rep. 573. Gustin vs. Brattle, Kirb. Rep. 303, 304.

In an action of assumpsit brought more that six years after the debt accrued, it is not necessary to aver a new promise within the six years; but proof of an acknowledgment of the debt within the six years, is sufficient to repel a defence set up under the Statute of Limitations. So where the defendant offers to set off a demand against the plaintiff, which accrued more than six years before the bringing of the suit, it is not necessary that the defendant, in the notice annexed to his plea, should state a promise to pay within the six years; nor is it any objection that the demand offered to be set off was not originally due to the defendant, but had been assigned to him, the assignment being before the commencement of the suit. Martin vs. Williams, Exor. &c. 17 Johns. Rep. 330.

Where the defendants, in their answer accompanying the plea, admitted that they had not been called upon to pay to the complainants, their demand, during six years prior to the suit; and that to avoid litigation, they had, through their counsel, offered to pay to the complainants, their demand without interest; but at the same time, insisted that they were discharged, by length of time, from all liability, and expressly reserving their right to avail themselves of the Statute of Limitations, in case the offer was refused: Held, that this was such an acknowledgment and admission of the debt, as defeated the operation of the Statute. Murrays vs. Coster & Al. (In Error.) 20 Johns. Rep. 576. & Vide Murrays vs. Coster & Al. (In Error.) 4 Cowen's Rep. 617.

An acknowledgment of a debt barred by the Statute of Limitations as a subsisting debt, takes the case out of the Statute. This principle is applicable to the Statute [of Connecticut,] limiting the recovery of book-debts, notwithstanding the phraseology of the Statute. Lord & Al. Exors. &c. vs. Shaler, 3 Conn. Rep. 139.