#### Belthazar P. Mellick, Plaintiff in Error, v. Justus De Seelhorst, Defendant in Error.

ERROR TO MADISON.

Any evidence that tends to prove a promise to take a case out of the statute of lira' itations, should be left to the jury with instructions from the court as to the law thereon.

An unqualified promise to pay a debt barred by the statute will take it out of it. Where the promise to pay is accompanied with a qualification, it rests with the plaintiff to do away the qualification. An acknowledgment that the debt is still due and subsisting, is sufficient. So also proof of an actual payment of part of the debt, will be sufficient evidence for the jury to infer a promise to pay the balance.

Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit brought in the Madison circuit court. The plaintiff below declared on a promissory note, to which the defendant plead the statute of limitations, and the plaintiff replied a promise within five years. On the trial of the cause, after the plaintiff had adduced his proof, the court directed the jury “ to return a verdict for the defendant.” To this opinion the plaintiff excepted, and the cause is brought into this court by writ of error. Several errors have been assigned, but the court only deem it necessary to notice one of them, and that is, whether the court ought not to have permitted the evidence to go to the jury without the direction.

On this point we are of opinion that the circuit court erred in not permitting the evidence to go to the jury, with instructions as to the law arising on the case, and then left the jury to decide whether the proof came within the rule.

The case of Lloyd v. Maund, 2 Durnford & East’s Reports, 760, is an authority to show that the evidence ought to have been left to the jury.

As it will be necessary for this cause to go to another jury, the court feel themselves called upon to lay down what they consider the best construction of the statute of limitations in relation to the cases taken out of its operation.

In doing so, however, the court labor under much embarrassment from the great number of conflicting decisions that are to be found in the books of reports. These decisions are of so irreconcileable a character, that this court are at liberty to extract from all the cases such rules as will, in their opinion, most conduce towards effecting the intentions of the legislature in passing the law. An unqualified promise to pay the debt, has, by all the decisions, been held sufficient to take the case out of the statute. Where the promise to pay *222is accompanied with a qualification, or upon a contingency, the court are of opinion that the proof rests upon the plaintiff to do away the qualification, or show that the contingency has happened. Where the acknowledgement of the party is that the demand is still due and subsisting against him, this will be sufficient to infer a promise to pay. So, also, proof of an actual payment of part of the debt, by the party, or his authorized agent, will also be sufficient evidence for the jury to infer a promise to pay the balance. The court give no opinion whether the evidence contained in the bill of exceptions was sufficient for the plaintiff to recover. If a party wishes to refer the evidence to the court, it ought to be done by a demurrer to evidence.

Cowles, for plaintiff in error.

McRoberts, for defendant in error.

The judgment is reversed with costs, and the cause remanded to the circuit court, and a venire de novo awarded in that court, (a), (1)

Judgment reversed.

(a)

An acknowledgment of the original justice of the claim is not sufficient to take the case out of the statute; the acknowledgment must go to the fact that it is still due. 8 Cranch, 72. Clementson v. Willams.

An acknowledgment whieh will revive the original cause of action, and remove the bar created by the statute, must be unqualified and unconditional; it must show positively that the debt is due in whole or in part. Wetzel v. Bussard, 11 Wheat., 309.

Vide Kimmel v. Schwartz, post, and the cases there referred to.

(1)

Proof that the 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 new promise only removes the bar, and leaves the case to be proved, as though the statute had not been pleaded. Kimmel v. Schwartz, post.

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. Ibid.

A defendant stated to an agent of the plaintiff, that he thought the account shown to him by the agent was correct, and he would see the plaintiff and settle with him. This is not sufficient to take the case out of the statute. There was no promise to pay, express or implied. It is not enough that the party admitted the account to be correct, or that he got the things charged, or executed the note sued on there must at least be an admission that the debt is still due and unpaid. Ayers v. Richards, 12 Ill., 148.

A promise to pay may be implied, from an unqualified admission that the debt is due and unpaid, nothing being said or done at the time, rebutting the presumption of a promise to pay. Ibid.

In Keener, ex’r., &c. v. Crull & wife, 19 Ill., 189, the evidence was, “ that the defendant's testator, who was the father of the feme covert plaintiff, in a conversation with oneLongwith, said, he had agreed to give his daughter (plaintiff below,) two hundred dollars a year for her work, and he had not paid her yet, and she had gone to Ohio.” The evidence also showed she had worked for her father five years. On this evidence the court said: “ The new promise may arise out of such facts as identify the debt, the subject of the promise, with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it, at the time acted upon and acceded to by the creditor, *223the promise. Like any other promise, having legal force and sanction, it must be made to the party seeking its benefits, or to some one authorized to act for him. A promise to a stranger is insufficient. Tested by these rules, the plaintiff can not recover. The language of the defendant’s testator was used to a stranger, having no concern in the matter, or right to act for the party in interest; the amount of the debt was not named, or in any manner indicated, nor was there any language unequivocally importing a present intention or undertaking to pay.”

An indorsement of a partial payment on a note, made by the holder without the privity of the maker, is not, of itself, and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations. Connelly v. Pearson, 4 Gilm., 110.

Although the statute of limitations may not, in terms, apply to courts of equity, yet by analogy equity will act on the statute, and will refuse the relief when the bar is complete at law. Manning v. Warren, 17 Ill., 267.

Where a trust fund continues with the trustee, it is not subject to be barred by the statute of limitations, as between trustee and cestui que trust. King v. Hamilton, 16 Ill., 190.

When the statute once commences running, it continues to run unless saved by the statute. The People v. White et al., 11 Ill., 350, and cases there cited. Chenot v. Lefevre, 3 Gilm., 637. Vanlandingham v. Huston, 4 Gilm., 128.

Cases within the reason, bnt not within the words of the statute, are not barred by it. Bedell v. Jenney, 4 Gilm., 207, and numerous authorities cited in the opinion of the court.

The statute of limitations should be specially pleaded, to all actions of a pergonal nature. Gebhart v. Adams, 23 Ill., 397.