#### Peter Kimmel, Plaintiff in Error, v. Jacob Schwartz, Defendant in Error.

ERROR TO JACKSON.

To take a case out of the statute of limitations, proof that the defendant promised to pay the debt is insufficient, without evidence of the original consideration of the indebtedness. (1)

The promise to pay a debt barred by the statute only removes the bar, and leaves the case to be proved, as if no statute had been pleaded.

The rule, as to what proof is required to take a case out of the statute is this: The promise to pay must be absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.

It is correct to substitute another person as security for costs, and then permit the discharged security to testify.

This was an action of assumpsit, for goods, wares, and merchandise, sold and delivered, money lent and advanced and on an account stated, brought in the Jack-son circuit court, by Schwartz against Kimmel. Kimmel pleaded non assumpsit, upon which issue was joined, and non assumpsit within five years. This plea was traversed and an issue to the country; jury and verdict for the plaintiff for two thousand one hundred and thirty-one dollars and thirty-one cents. The defendant moved for a new trial for the following reasons:

1. The suit'was brought without the authority of the plaintiff.

2. The plaintiff is, and has been insane since and before the pretended existence of the alleged cause of action.

3. No promise to pay within five years was proved.

4. The plaintiff never knew of the action or cause of action.

5. The verdict is against law and evidence.

The motion for a new trial was overruled. During the progress of the trial, and after the plaintiff had gone through with the testimony on his part, the defendant moved the court to exclude the evidence from the jury, and direct as in case of a nonsuit. Which motion the court overruled, to which opinion of the court the defendant excepted. From the bill of exceptions, the following is the testimony given on the trial, by plaintiff: Eli Penrod, a witness for plaintiff, testified that about two years before the trial, he was living at the defendant’s house, when Mrs. Schwartz, the wife of the plaintiff, was there, and asked the defendant for money, and said that the defendant owed her for a long time; the sum asked for by Mrs. Schwartz was about two thousand five hundred dollars. The witness understood from the conversation be*279tween them that she had let defendant have notes which he had collected, and had also lent him money—that during the same conversation, defendant said he had not the money then, but that he was going to New Orleans and would get money, and when he returned, if she would send one of her boys with him to Shawneetown to prove a paper or some hand writing, witness did not recollect which, he would pay her, to which Mrs. Schwartz replied, that the boys did not know any thing about the hand writing. The witness further stated, that at the time of this conversation, there were no persons present, but defendant, Mrs. Schwartz, and witness, and he does not know whether she had any papers in her hands or not; that she was there about half an hour.

Susannah Will testified, that she went in company with Mrs. Schwartz to see defendant, and that Mrs. Schwartz told defendant, in the presence of witness, that he owed her the sum of two thousand five hundred dollars, and that she wanted it. To which the defendant replied, yes, but said he had not the money to pay her. The time of this conversation was about four years before the commencement of the suit. This witness also stated, that about two years thereafter, defendant was at her, witness’ husband’s house, and in a conversation with witness, defendant said that he had rented a house in Arkansas, for a tavern, and wanted Mr. Will to move there and keep a tavern, and said he would try to make up for Mrs. Schwartz five or six hundred dollars. Witness further stated, that Mrs. Schwartz was the sister of defendant, and that her husband, the plaintiff, had never been in this state; that Mrs. Schwartz, with the family, had lived in it about seven years, apart from the plaintiff, and that she understood that this claim on defendant was for money that Mrs. Schwartz had lent him.

Conrad Will testified, that in the year 1817, he had a settlement with defendant, at Kaskaskia, in which he fell in defendant’s debt, and Mrs. Schwartz said she would take witness for her debtor, and credit defendant with the amount on the ten hundred and fifty-five dollars which she had let defendant have at Pittsburgh, which arrangement the defendant agreed to. He also understood from Mrs. Schwartz, that this ten hundred and fifty-five dollars had been settled.

George Schwartz, the son of the plaintiff, testified that in the month of August, 1824, shortly before the commencement of this suit, he went to the defendant and asked him for the sum of 2,182 dollars thirty-seven and a half cents, which the defendant was owing them. To which defendant replied, that that was the sum, but said also that he had settled it with *280George Kimmel; that the demand against defendant for said sum of money was created twelve or thirteen years ago ; that his mother when in Pennsylvania, had frequently let defendant have money; that the amount now claimed was loaned to defendant by his mother, the plaintiff’s wife. On his cross-examination he stated that the plaintiff lived in the state of Pennsylvania, and had not been in his right mind or capable of doing business since the year 1810; that this suit was commenced by direction of his mother who has lived in this state for about seven years, and has been in the habit of transacting business for plaintiff’s family both before and since she came to this state. This witness was objected to, on the ground that he was the security for the costs of the suit, but the court permitted him to be released, and another security substituted. Judgment being rendered on the verdict against the defendant, he sued out a writ of error, and assigned for error, 1. The refusal of the court to exclude the testimony and direct a nonsuit.

2. In permitting the security for costs to be released and become a witness.

(1)

See note to Mellick v. De Seelhorst, ante, p. 221.

Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit. The defendant below plead non assumpsit, and the statute of limitations. On the trial of this cause, after the plaintiff, Schwartz, had gone through with his testimony, the defendant moved the court to charge the jury that the testimony was insufficient, which instruction the court refused to give, and a bill of exceptions was tendered and signed, containing all the testimony given in the cause.

The testimony is very loose, confused and contradictory. After a careful perusal of it, the mind is left without any satisfactory conclusion as to the real merits of the case. The duty of the court, in a case thus situated is very difficult. We are, however, satisfied that injustice has been done, and that the cause ought to be presented to another jury.

In a recent case, decided in the supreme court of the United States, they were of opinion, that proof that defendant had promised to pay a debt barred by the statute of limitations, is insufficient, without evidence of the original consideration of the indebtedness. The promise to pay a debt barred by the statute, only removes the bar and leaves the case to be proved as if no statute of limitations had been pleaded. The evidence on this point is very defective. It is impossible to gather from the proof the precise nature of the original debt. Without some clear and distinct evidence of the existence of the original demand, it was the duty of the court to have sus*281tamed the defendant’s motion for a nonsuit, or given the instructions.

Eddy and Breese, for plaintiff in error.

Baker, for defendant in error.

As this case will have to go to another jury, the court lay down the following, as the rule heretofore adopted by this court as to what proof is required to take a case out of the statute.

The promise to pay must he absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.

Several other objections have been raised to the proceedings in this cause, but the court do not deem any of them of sufficient importance to be commented upon, except the objection that the court suffered the security for costs to be discharged and new security taken, and then permitted the discharged security to testify. This was correct. Security for costs is in the nature of special bail, except the liability is' not so great, yet bail are often discharged in order to obtain their testimony.

The judgment must be reversed with costs, and the cause remanded to the Jackson circuit court, where a venire de novo must be awarded, (a)

Judgment reversed.

(a)

The statute of limitations, instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison and others, 1 Peter’s Rep., 360.

If the bar of a statute 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 annexed, they ought to be shown to be performed. Id., 362.

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 present subsisting debt which the party is liable and willing to pay. If there he accompanying circumstances which repel the presumption of a promise or intention to pay; if the expression be equivocal, vague or indeterminate, leading to no certain conclusion, but at best to probable inferences which may affect different minds in different ways, they ought not to go to a jury as evidence of a new promise to revive the cause of action. Id., 362.

To take a case out of the statute there must be an unqualified acknowledgment not only of the debt as originally due, but that it continues so; and if there has been a conditional promise, that the condition has been performed. Bangs v. Hall, 2 Picker. Mass. Rep., 368.

If at the time of the acknowledgment of the existence of the debt such acknowledgment is qualified in a way to repel the presumption of a promise to pay, it *282will not be evidence of a promise sufficient to revive the debt and take it out of the statute. Sands v. Gelston, 15 Johns. Rep., 511.

Vide Clementson v. Williams, 8 Cranch, 72. Wetzell v. Bussard, 11 Wheat., 309. Harrison v. Handley, 1 Bibb, 443. Gray v. Lawridge, 2 Bibb, 284. Ormsby v. Letcher, 3 Bibb, 269. Bell v. Rowland’s adm’rs, Hardin's Rep., 301. Mellick v. De Seelhorst, ante, p. 221.