for a moment, except that which looks upon limitation as founded on actual probability of payment? And connected with these decisions grew up an opinion among courts, that the plea of the statute was dishonorable, and not to be favored. (g) So late as in 1830, Mr. Justice Story (h) spoke very strongly, in a passage we shall presently have occasion to quote at length, - of his own recollection of an extreme and inexcusable endeavor of the courts to take from the operation of the statute of limitations, all cases in which any words or phrases of the sup posed debtor could be strained into an admission of the debt. But even so early as in 1702, it was said by the Court of King's Bench, (i) that "The statute of limitations, on which the security of all men depends, is to be favored." And we give, in a note, acknowledgments which have been held insufficient to take the case out of the statute, although, if the authorities, to avoid the plaintiff, to whom he was indebted. This was held to be a sufficient acknowledgment to take the case out of the statute, there being no other debt between them. And in Lloyd v. Maund, 2 T. R. 760, it was held, that a letter written by the defendant to the plaintiff's attorney on being served with a writ, couched in ambiguous terms, neither expressly admitting nor denying the debt, should be left to the jury to consider whether it amounted to an acknowledg ment of the debt, so as to take it out of the statute. And Ashhurst, J., said: "It is certainly true, that any acknowledgment will take the case out of the statute of limitations. Now, though this letter is written in ambiguous terms, there are some parts of it from which the jury might perhaps have inferred an acknowledgment of the debt. Throughout the whole of it, the defendant does not deny the existence of the debt." So in Bryan v. Horseman, 4 East, 599, it was held, that an acknowledgment of a debt, though accompanied with a declaration by the defendant "that he did not consider himself as owing the plaintiff a farthing, it being more than six years since he contracted," was sufficient to take the case out of the statute. So in Leaper v. Tatton, 16 East, 420, in assumpsit against the defendant, as acceptor of a bill of exchange, and upon an account stated, evidence that the defendant acknowledged his acceptance, and that he " had been liable, but said that he was not liable then, because it was out of date, and that he could not pay it, it was not in his power to pay it, was held sufficient to take the case out of the statute, upon a plea of actio non accrevit infra sex annos. And Lord Ellenborough said: "As to the sufficiency of the evidence of the promise, it was an acknowledgment by the defendant that he had not paid the bill, and that he could not pay it; and as the limitation of the statute is only a presumption of payment, if his own acknowledgment that he has not paid be shown, it does away the statute.' And again, in Clark v. Hougham, 2 B. & C. 154, Bayley, J., said: "The statute of limitations is a bar, on the supposition, after a certain time, that a debt has been paid, and the vouchers lost. Wherever it appears, by the acknowledgment of the party, that it is not paid, that takes the case out of the statute. Leaper v. Tatton, 16 East, 420; Dothwaite v. Tibbut, 5 M. & S. 75. And according to those cases it makes no difference whether the acknowledgment be accompanied by a promise or refusal to pay. Mountstephen v. Brooke, 3 B. & Áld. 141, shows that an acknowledgment to a third person is sufficient." (g) Willet v. Atterton, 1 W. Bl. 35; Perkins v. Burbank, 2 Mass. 81. (h) In Spring v. Gray, 5 Mason, 523. (i) In Green v. Rivett, 2 Salk. 421. stated in a previous note, had been followed, most of these, if not all, must have been held sufficient to constitute a new promise. (j) And at length, through a series of decisions, going (j) Thus, in A'Court v. Cross, 3 Bing. 329, defendant, being arrested on a debt more than six years old, said, "I know that I owe the money, but the bill I gave is on a threepenny receipt stamp, and I will never pay it; this was held not such an acknowledgment as would revive the debt against a plea of the statute of limitations. And per Best, C. J., "The courts have said, acknowledgment of a debt is sufficient, without any promise to pay it, to take a case out of the statute. I cannot reconcile this doctrine, either with the words of the statute, or the language of the pleadings. The replication to the plea of non-assumpsit infra sex annos, is that the defendant did undertake and promise within six years. The mere acknowledgment of a debt is not a promise to pay it; a man may acknowledge a debt which he knows he is incapable of paying, and it is contrary to all sound reasoning to presume from such acknowledgment that he promises to pay it; yet without regarding the circumstance under which an acknowledgment was made, the courts, on proof of it, have presumed a promise. It has been supposed that the legislature only meant to protect persons who had paid their debts, but from lapse of time had lost or destroyed the proof of payment. From the title of the act to the last section, every word of it shows that it was not passed on this narrow ground. It is, as I have often heard it called by great judges, an act of peace. Long dormant claims have often more of cruelty than of justice in them. Christianity forbids us to attempt enforcing the payment of a debt which time and misfortune have rendered the debtor unable to discharge. The legislature thought, that if a demand was not attempted to be enforced for six years, some good excuse for the non-payment might be presumed, and took away the legal power of recovering it. I think, if I were now sitting in the Exchequer Chamber, I should say that an acknowledgment of a debt, however distinct and unqualified, would not take from the party who makes it the protection of the statute of limitations. But I should not, after the cases that have been decided, be disposed to go so far in this court, without consulting the judges of the other courts." So VOL. III. 5 in Ayton v. Bolt, 4 Bing. 105, where the defendant being applied to to pay a debt barred by the statute of limitations, said he should be happy to pay it if he could; it was held, that the plaintiff must show the defendant's ability to pay, the court saying that the case fell within the rule laid down in A'Court v. Cross. And in Tanner v. Smart, 6 B. & C. 603, in assumpsit, brought to recover a sum of money, the defendant pleaded the statute of limitations, and upon that issue was joined. At the trial, the plaintiff proved the following acknowledgment by the defendant within six years: "I cannot pay the debt at present, but I will pay it as soon as I can;" held, that this was not sufficient to entitle the plaintiff to a verdict, no proof being given of the defendant's ability to pay. And Lord Tenterden said, "There are, undoubtedly, authorities that the statute is founded on the presumption of payment, that whatever repels that presumption is an answer to the statute, and that any acknowledgment which repels that presumption is, in legal effect, a promise to pay the debt; and that though such an acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the condition or refusal void, and considers the acknowledgment of itself an unconditional answer to the statute; and if these authorities be unquestionable, the verdict which has been given for the plaintiff ought to stand, and the rule for a new trial ought to be discharged. But if there are conflicting authorities upon the point, if the principles upon which the authorities I have mentioned are founded, appear to be doubtful, and the opposite authorities more consonant to legal rules, we ought, at least, to grant a new trial, that the op portunity may be offered of having the decision of a court of error upon the point, and that for the future we may have a correct standard by which to act. If an acknowledgment had the effect which the cases in the plaintiff's favor attribute to it, one should have expected that the replication to a plea of the statute would have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute; whereas the constant replication, ever since the statute, to let in evidence of to show that the statute is intended for the relief and quiet of defendants, the law reached the conclusion, justly and forcibly expressed by Mr. Justice Story, in the case to which we have before referred. (k) He says: "I consider the statute of limitations a highly beneficial statute, and entitled, as such, to receive, if not a liberal, at least a reasonable construction, in furtherance' of its manifest object. It is a statute of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distances of time, and surprising the parties, or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time, or the defective memory, or death, or removal of witThe defence, therefore, which it puts forth, is an nesses. an acknowledgment is, that the cause of action accrued (or the defendant made the promise in the declaration) within six years; and the only principle upon which it can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and, as such, constitutes a new cause of action, and supports and establishes the promises 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." His lordship then proceeds to an elaborate review of the authorities, and continues: "All these cases proceed upon the principle, that under the ordinary issue on the statute of limitations, an acknowledgment is only evidence of a promise to pay; and unless it is conformable to, and maintains the promises in the declaration, though it may show to demonstration that the debt has never been paid, and is still subsisting, it has no effect." And see Fearn v. Lewis, 4 Moore & P. 1; Brigstocke v. Smith, 1 Cromp. & M 483; Haydon v. Williams, 7 Bing. 163; Cory v. Bretton, 4 C. & P. 462; Morrell v. Frith, 3 M. & W. 402; Routledge v. Ramsay, A. & E. 221; Williams v. Griffith, 3 Exch. 335; Cawley v. Furnell, 12 C. B. 291; Smith v. Thorn, 18 Q. B. 134, 10 Eng. L. & Eq. 391; Hart v. Prendergast, 14 M. & W. 741. In this last case, Parke, B., said: "There is no doubt of the principle of law applicable to these cases, since the decision in Tanner v. Smart; namely, that the plaintiff must either show an unqualified acknowledgment of the debt, or, if he show a promise to pay, coupled with a condition, he must show performance of the condition; so as in either case to fit the promise laid in the declaration, which is a promise to pay on request. The case of Tanner v. Smart put an end to a series of decisions which were a disgrace to the law, and I trust we shall be in no danger of falling into the same course again." For recent American cases to the same effect, see Gilkyson v. Larue, 6 Watts & S. 213; Morgan v. Walton, 4 Penn. St. 321; Laforge v. Jayne, 9 id. 410; Christy v. Flemington, 10 id. 129; Gillingham v. Gillingham, 17 id. 303; Kyle v. Wells, id. 286; Bell v. Crawford, 8 Gratt. 110; Ross v. Ross, 20 Ala. 105; Ten Eyck v. Wing, 1 Mann. (Mich.), 40; Butterfield v. Jacobs, 15 N. H. 140; Ventris v. Shaw, 14 id. 422; Sherman v. Wakeman, 11 Barb. 254; Ellicott v. Nichols, 7 Gill, 85; Mitchell v. Sellman, 5 Md. 376; Carruth v. Paige, 22 Vt. 179; Phelps v. Williamson, 26 Vt. 230; Hayden v. Johnson, id. 768; Cooper v. Parker, 25 id. 502; Hill v. Kendall, id. 528; Brainard v. Buck, id. 573; Pritchard v. Howell, 1 Wis. 131; Deloach v. Turner, 6 Rich. 117, 7 id. 143; Butler v. Winters, 2 Swan, 91; Brown v. Edes, 37 Me. 318; Broddie v. Johnson, 1 Sneed, 464. And see the leading case cf Bell v. Morrison, 1 Pet. 351. (k) See ante, p. 64, n. (h). honorable defence, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters, in the only practicable manner, such as are ancient and unacknowledged; and, whatever may have been their original validity, such as are now beyond the power of the party to meet, with all the proper vouchers and evidence to repel them. The natural presumption certainly is, that claims which have been long neglected are unfounded, or at least are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their ignorance, or their overconfidence in regard to transactions which have become dim by age. Yet I well remember the time when courts of law exercised what I cannot but deem a most unseemly anxiety to suppress the defence; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admissions of the debt. Happily, that period has passed away; and judges now confine themselves to the more appropriate duty of construing the statute, rather than devising means to evade its operation." SECTION II. OF A NEW PROMISE. The law may not be yet entirely settled, as to what shall constitute the new promise which removes the bar of the statute. But, without now taking into consideration Lord Tenterden's act, requiring the new promise to be in writing, we think we may draw from the multitudinous decisions on the subject, the following conclusions, as established law. The first and most general of these is, that there must be either an express promise, or an acknowledgment expressed in such words, and attended by such circumstances, as give to it the meaning, and therefore the force and effect of a new promise. (1) Such, we think, is the rule, although it must be admitted that it has been sometimes applied, even of late, with great laxity. Whether an acknowledgment is thus equivalent to a new promise, or is sufficient to remove the bar of the statute, is a question which must be determined either by the court or the jury; and it does not seem to be quite settled within which province it lies. We should say, however, in general, that where this question is one of intention, and is to.be gathered from the words spoken, and from the circumstances of the case to be considered in connection with the words, there it is for the jury, under the instruction of the court as to the principles applicable to the question, to determine whether the acknowledgment be sufficient or not. But where the question is one of the meaning of words only, and especially where the words relied upon are written, and the question becomes, in effect, one of the construction of a written document, there it is the duty of the court to make, and of the jury to receive, a distinct direction. (m) (1) See upon this point the leading case of Tanner v. Smart, 6 B. & C. 603, cited in the preceding note. "According to the recent cases," says Parke, B., in Morrell v. Frith, 3 M. & W. 405, "the document, in order to take the case out of the statute, must either contain a promise to pay the debt on request, or an acknowledgment from which such promise is to be inferred." In Hart v. Prendergast, 14 M. & W. 746, Rolfe, B., said: "The principle is said to be, that the document must contain either a promise to pay the debt, or an acknowledgment from which such a promise is to be inferred. Perhaps it would be more correct to say, that it must, in all cases, contain a promise to pay, but that, from a simple acknowledgment, the law implies a promise: but there must, in all cases, be a promise, in order to support the declaration." Again, in Bell v. Morrison, Pet. 362, Mr. Justice Story says: "If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved, in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are an nexed, they ought to be shown to be performed. If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay; if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways; we think they ought not to go to a jury as evidence of a new promise to revive the cause of action. Any other course would open all the mischiefs against which the statute was intended to guard innocent persons, and expose them to the dangers of being entrapped in careless conversations, and betrayed by perjuries." See further the English and American cases cited in the preceding note. (m) In Lloyd v. Maund, 2 T. R. 760, the acknowledgment was contained in a letter, |