#### Bank of Newbern v. Sneed.

T I From Craven. J

The acknowledgment which will take a case out of the operation of the statute of limitations, must be an acknow ledgment of a present, subsisting debt.

When a defendant, in an affidavit for a continuance, stated “ that the action was founded on his guaranty, and by the absent witness he expected to prove such laches on the part of the plaintiff as to discharge him from his engagement,” it was held that thi* was no acknowledgment to take the case out of the statute.

This was an action of assumpsit, in which the plaintiff declared in two counts; the first, against the defendant as indorser of a promissory note: the second, upon the defendant’s guaranty of a note alleging it as an agreement to be chargeable as an indorser.

Upon the trial below, before Badger. Judge, it appeared that the defendant, being the holder of a note made by Hardee Mills, Thomas Mills, and William Mills, dated the 20th September, 1816; and payable ninety days, after date, to the president and directors of the bank of New-bern, for the sum of g559, offered the note to the bank to be discounted for his accommodation: the note was accordingly discounted, and the proceeds applied to the defendant’s use, upon his writing an endorsement on the note in these words, “ guaranteed by John Sneed.” The ninety days expired on the 19th of December, and (no *501payment having been made by the makers,) on the 23d notice of nonpayment was given to the defendant, and that the bank looked to him for payment; the defendant resid-cd in the same street and within a short distance of the bank. The presiding Judge holding that the guaranty was an agreement to be responsible as an indorser, and that due notice had been given, a verdict was taken for the plaintiff, subject to the opinion of the Court upon the further questions arising on the following facts:

The hank brought an action on the note against the makers to May sessions, 1813, of Pitt County Court. The writ was i*eturned, “ executed on Thomas and William Mills, Hardee Mills not to be found, having left the state.” Knot.pros, was entered as to Hardee, and at August sessions following, the bank obtained judgment against Thomas and William Mills. On this judgment a ji. fa. issued, which was returned at November, with these endorsements : “ levied on Thomas Mills’ land where he lives.” “ Credit this execution with sixty dollars ninety-seven cents, paid by Charles Jenkins.” “ Indulgence by the plaintiff’s agent for the balance.” From November another fi. fa. issued, (not as an alias,) returnable to February, 1819, which was returned endorsed, “ nothing to be found;” from February another issued to May, which was returned endorsed as the last; from May to August another issued, which was returned with the following endorsements, “levied on the land where Thomas Mills now lives, as the property of said Mills, though in dispute the 24th of May, 1819 — no sale on account of the land being in dispute.” From August a ven. ex. issued, which was returned to November endorsed as follows, “ the interest of Thomas Mills in the within land sold at the court house in Greenville, 5th November, 1819, and bought by Walter Hanrahan for twenty five dollars:” afi.fa. then issued, wdiicli was returned to February, 1820, “ nothing to be found.”

The writ in this action against Snead was returned to *502spring term, 1820; when the defendant pleaded the general issue, with leave to add: at fall term, 1824, the plea of the statute of limitations was added, and at the same term, the defendant made an affidavit for the continuance of the cause, because of the absence of Alexander Henderson, a witness, and stated in his affidavit as follows: “the action is founded on the guaranty of defendant, and by said witness defendant expects to prove such laches on the part of the bank as to discharge him from his engagement.”

Upon the foregoing statement, the following questions were made:

1st. Whether, by the proceedings of the plaintiff in Pitt against the makers of the note, the defendánt was discharged?

2d. The plaintiff’s counsel contended, that the statement of the defendant in his affidavit was such an acknowledgment of a debt as to take the case out of the statute of limitations; and it was agreed between the parties, that if the Court should be of opinion with the defendant on these points, then the verdict which had been taken should be set aside and a nonsuit entered; if with the plaintiff on both points, then judgment to be entered upon the verdict

The presiding Judge, holding that the affidavit contained nothing to be left to the jury as evidence of an acknowledgment of a subsisting debt, directed the verdict to beset aside, and a nonsuit entered, whereupon plaintiff ap-> pealed,

Gaston, for the appellant

The true principle is, that the statute of limitations is designed as a protection to those who it is probable have paid their debts, but may not be able to prove it; and it shall not be abused to shelter from a just demand one who pretends to no such presumptive payment.

For, J. although it bars the remedy, and although if *503‘appears o'» the face of the plaintiff’s demand that it is out of date, yet, unless defendant pleads the statute, the plaintiff must have judgment. (Levins 110.) Lee v. Rogers, (2 Saund. 63 b. note.)

2. It has been holden by a long train of1 authorities, that whatever be the form of a replication to the plea of the statute, the acknowledgment of a debt is not a new promise, and as such the basis of the suit; but is a revival of the original cause of action: therefore, any acknowledgment, however slight, is sufficient to take the case out of the statute. Leaperv. Taitón, (16 East 419.) True-man v. Fenton, (Cowper 548.) “Prove your debt, and I will pay you;” “I am ready to account, but nothing is due;” and slighter acknowledgments, will revive a debt.

There are many cases in which the debt was taken out of the statute, though there was no new promise, no evidence of a new promise, but at most an acknowledgment that the original debt had not been satisfied. Baillie v.

Ihchiqnin, (1 Esp. R. 436.) Clark v. Bradshaw, (3 Ibid 156.) Peters v. Brown, (4 Ibid 47.) Ferguson v. Fitt, (1 Hay. 239.)

There are cases in which the payment of part by one of two joint proinissors, or an acknowledgment by one, takes the case out of the statute against both: if the new promise were the basis of the action, but one could b« made liable. See 1 Eq. Ca. M. 305. pi. 15. 1 Dick. 163. Peake’s Ca. 93.

If a jury finds that a defendant “ acknowledged the debt,” such a verdict is sufficient. (1 Selw. 126.)

The acknowledgment is good, though made subsequent to the suit. Yea v. Fouraker, (2 Burr. 1099.) Lloyd v. Maund, (2 T. R. 760.) Bryan v. Horseman, (4 East 593.) Rucker v. Hannay, (Ibid 603.) Stuby v. Champlin, (4 Johns. R. 461.)

The principle of these decisions is well laid down in 8 Mass. R. 113. 11 Ibid 452.

It is true that it has been decided, that where an eáífí *504cutor plaintiff declares on an assumpsit to his testator, he cannot give in evidence a promise to himself. {% Ld. Bay. 11Q1. 6 Mod. 309. 1 Salk. 28. 3 East 409.) This means no more^an that this acknowledgment to the executor cannot be given in evidence to support an averment of a promise to the testator. Heylin v. Hastings, (Carthew. 470.) 11 Mod. 37. At all events, it shows no more than that in this instance the forms of pleading are so far regarded that an acknowledgment to an executor cannot support or revive an assumpsit to the testator.

If authority requires us to respect it, authorities more uniform, more numerous, and equally respectable, require us, in this case, to decide for the plaintiff.

Badger, for the appellee.

Two questions are presented for the consideration of the Court; one, whether the affidavit of Snead for the continuance of the cause is sufficient to take the case out of the statute of limitations; and the other, whether the defendant is discharged from his engagement of guaranty by the laches of the plaintiff. I shall confine myself to the first question; because, if the decision of it be for us, the case is determined. On the part of the appellee it is contended, that the affidavit connot avail the plaintiff, because, first, it contains no acknowledgment of a subsisting debt; and, secondly, if it did, it having been made since the parties were at issue, cannot support this action.

1st. As to what acknowdedgment shall be sufficient to take a case out of the statute. It is curious to observe the fluctuations of judicial opinion on the inquiry now submitted to the Court. For some time after the passing of the statute of James, the Judges seemed to respect the declared will of the legislature, and to confine themselves to their proper business of ascertaining the true construction of the act according to the analogy of the common law in other cases. Hence, in the first year of Will. <§-, -Mary, it seems to have been agreed that an express pro*505mise was necessary in every case to render him liable who had been discharged by the statute; and the only doubt was, whether a new consideration was not necessary to support the new promise. To show this, the Court is referred to the case of Bland, v. Haselrig, reported in 2 Vent. 151.

But afterwards, the judges began (it would seem) to distrust the wisdom of the statute, and, leaving their true province, wandered into inquiries of policy, with which, as judges, they had nothing to do, and which they could not investigate without transcending their authority. This statute met the fate of the statute “Be Bonis, V and those who should have watched over the law began to overset it. By little and little they departed from the plain meaning of the act; they refined upon its provisions, and, admitting exception after exception, it remained at last upon the statute book, not as a rule of conduct from the sovereign to the subject, but as a new proof that laxá-is not what the legislator wills, but what the judges declare. It is not meant that these judges designed to do wrong, or intended a rebellion of the judicial against the legislative authority. Seeing a defendant endeavouring, by the aid of this statute, to evade the payment of a just debt, they wished to get round the statute in favor of substantial justice. They forgot that, when a party is discharged by law from his obligation, it is a question of ethicks merely, whether he can, with a safe conscience, avail himself of such discharge. Going in pursuit of natural equity, they discarded the safe principle, that the law and the justice of a case are ever the same in a court of law, and involved themselves in the vain effort to make general rules accomplish universal good. The judges found themselves at length encumbered with conflicting decisions, from which they unhappily endeavoured to escape, not by overturning the wrong and restoring the true construction of the statute, but by a resort to new refinements and unintelligible distinctions.

*506I will ask the indulgence of the Court while I offer proof, by a reference to some of the cases, of the justness of these observations.

In 1leylin v. Hastings, the acknowledgment which takes a case out of the statute, is said to operate as a waiver of the statute, and also as evidence of a new promise. {Li. Ray. 389. 421. Carthew 470. S. C. Salk. 29. S. C.) In Leaperx. Tatton, it is put upon the ground that the defendant has waived the benefit of the statute. (16 East 420.) Yet in the last Case, where the defendant, admitting the original liability, said, “he was not liable then, because it was out of date, and that he could not pay it,” it was held that he had lost the benefit of the statute. So in the case of Bryan x. Horseman, (4 East 599.) the defendant said, “ I do not consider myself as owing you a farthing, it being more than six years since,” he was held liable. On what ground was the defendant deprived of the protection of the statute in these cases? In both, so far from waiving that protection or promising to pay, he insists on its benefit and refuses to pay.

But the acknowledgment cannot operate as a waiver of the statute, so as to revive the old cause of action and enable the plaintiff to recover on that; for if it did so operate, then an acknowledgment to the executor would be sufiicient to sustain an action on a promise to the testator. But such acknowledgment is not sufiicient. Greene x. Crane, {Li. Ray. 1101. Salk. 28. S. C.) And this is also expressly decided in twro modern cases. (3 East 409. 6 Taunt. 210.) Nor can it operate as a new promise: if it be true that it gives no new cause of action, but only revives the old, as ruled in Garth. 470.: especially when it is held that defendant shall be liable, though he positively refuse either to promise or to pay.

If it be said, this is like the case where, on non-assump-sit, the plaintiff proves the acknowledgment of the consideration by the defendant, though coupled with a refusal to pay, the assumpsit shall be implied notwithstand-*507#ig; I answer, in that case the confession of the defendant is only offered as one mode of proving the delivery of the goods or the performance of the work. Upon this the legal liability arises, and from this liability he has never been discharged. Any other mode of proving the fact would be sufficient. But in reply to the statute, there must be some acknowledgment of the defendant, not as a medium of proving the original cause of action, for that is already supposed to be proved or admitted, but as a new engagement or waiver of the discharge afforded by the statute; and clearly, though the jury should be satisfied by demonstrative evidence that the original debt still remained unsatisfied, this would not take the case out of the statute without some acknowledgment from the defendant himself.

Again, in Bland v. Haselrig before referred to, it is expressly determined, that a bare owning the debt, without a promise to pay, will not be sufficient.

In Heylin v. Hastings it is, on the contrary, held, that a bare acknowledgment, without a promise, will be suf-ci ent.

Again, it is said the plea of non assumpsit infra sex annos, admits a cause of action before the six years, and plaintiff need only show a promise within the six years, without proving any consideration. (Bull. JV. P. 148.) If one of several defendants promise, it takes the case out of the statute as against all. Whitcombe v. Whiting, (Bong. 65 2. 2 II. El. 340.) The consequence is, if there be a promise by two without any consideration, after the six years a new promise by one shall charge the other to perform that promise which was originally void, if the defendant rely on the plea of the statute.

But it was held by Eyre, C. J., that payment before the six years might be shown under the plea of the statute, and generally, that any evidence was proper upon that plea which would be proper upon the general issue, (1 Barnard 366.) which could, not be if pleading that statute *508■was an admission of record that the debt was due, but for the lapse of time.

Again, the case of Bryan and Horseman, before cited, may be collated with Coltman v. Marsh, (3 Taunt. 380.) in which it is expressly ruled, that the declaration by the defendant, “I owe you not a farthing, for it is more than six years since,” was insufficient to take the case out of the statute. To these may he added the cases in which it was held that such expressions as, “ I will settle, but nothing is due,” were sufficient.

Again, a devise of lands for payment of debts, is said to take all the testator’s debts out of the statute in equity, (1 Salk. 154.) and this is said by Lord Mansfield, to be the doctrine of the courts of law, in Cowper 548. In 3 Mk. 107". Ld. Hardwick acknowledges these decisons, though he complains of them, to be binding. The like effect is given to an advertisement in the gazette, that all the party’s creditors may apply at an appointed place, and on such application will be paid. [Mr. Eq. 305.)

The absurdity of these decisions seems sufficiently obvious. The judges have said, the statute bars the action upon a presumption of payment or discharge; when this is rebutted, by showing that the debtor acknowledges the debt has not been discharged, the case is out of the statute; it appears to be a just debt, and he shall pay it. But when a man charges land with the payment of his just debts, or promises in the gazette to pay his just debts generally, what evidence does it furnish that any particular claim barred by the statute is still unpaid? The presumption is, that it is paid. The party only avows a willingness to pay his just debts, which this is not, if it has been paid, and it is presumed to have been paid, until the contrary appears. But the charge on the lands in the one case, and the advertisement in the other, have no reference to any particular debt,, and furnish no evidence of its subsisting at that time or any other. If these determinations are to be followed, a debtor making provision for his debts, *509a man removing and advertising his intention and his willingness to satisfy his creditors, or an executor even advertising for the claimants to exhibit their demands against his testator, (though it is his duty hy law to advertise,) will each of them revive any stale demand which shall have existed, though paid twenty years before and the acquittances destroyed; and so this statute be repealed.

These decisions, contradicting one another and opposed by common sense, cannot be followed by the Court, The subject, thus situated, should be considered open; and I hope your honors will return to the rule laid down in Bland and Haselrig, as the only means of restoring to the law the regularity of order and the beauty of symmetry. Upon principle, an express promise must be required. This seems to me evident to demonstration. It is a well settled rule, that though a moral obligation be a good consideration to support an express, it is that from which the law will never raise an implied promise. An obligation which the law does not enforce, can be only a moral obligation. No legal obligation to perform a contract can be imagined without the coercion of the law to perform it. When the law, therefore, withdraws from certain legal contracts the remedy to enforce them, they cease to have legal obligation, and are engagements binding in conscience only. This seems so exceedingly clear as to admit of no illustration; for a legal obligation which the law refuses to enforce is an absurdity in terms. But a demand barred by the statute of limitations, is one which the law does not enforce. Being, then, discarded by the legal forum, it is binding only in foro consáentise. An express promise to discharge it can alone convert it into a legal demand, according to the analogy of legal principles in other cases depending on the same obligation. To acknowledge the existence of that which creates a moral duty, cannot be supposed, without absurdity, to change the duty into a legal one. I infer, therefore, that bv a just construction of this statute, an express promise *510is necessary to sustain an action on a demand barred by the lapse of time, and that such demand, as a moral duty, is the consideration which supports the promise. And on this clear, consistent and manly ground, I should wish the subject to be placed by this Court. But if the Court should deem the position unsound, or if sound too strongly opposed by the authorities to be assumed, I then contend that no case, entitled to respect, will give to the affidavit the effect insisted upon by the counsel for the appellant.

The doctrine to be extracted from the authorities seems to be, that there must be a promise either expressed or implied; and tiiat where there is an acknowledgment of the existence of the debt, a promise is to be implied from it. And the utmost to which the cases have ever gone, in implying a promise, is, that if the defendant admit a legal liability to pay, once existing, and insist on a discharge by the lapse of time, so as to imply that the debt is still due, and there is no defence but the statute, it is evidence of a promise: although this latter position is contradicted by aiithorites of great weight, and is to be considered at best as apochryphal.

But it is clear, upon all the decisions, that where the acknowledgment involves an allegation that there is any other defence than the statute, in law or conscience, whether that defence be specified or not, no promise to pay is to be implied; because a promise in fact is intended, and it is absurd to presume such promise from the very declaration which asserts a legal or moral exemption from the liability. And the party asserting this exemption is not called upon to sustain it by proof; because the statute had in view to protect men against satisfied demands, where the evidence of such satisfaction is not to be produced, and to require proof of such assertion would render the statute useless. Nor is this position at all affected where the defendant avers his ability to prove the discharges

*511. The following cases will, I think, completely establish what I have laid down.

In an action for money had and received, in which the statute was pleaded, the defendant had said, “I acknowledge I had the money, but the testatrix gave it to me;” and it was held it could not amount to a promise to pay, tvhen he insisted on a right to retain, (Bull. JV*. P. 148.)

So where the defendant, being shown his accountable receipt, said, “It is not worth a cent. It is my signature, but I have never paid it, and I never will: and besides, it is out of date;” it was ruled insufficient to deprive the defendant of the protection of the statute. liowcroft v. Lo-mas, (4 Maulé <§• SeL 457.)

And the case of Hellings v. Shaw in 1 Moore 340, (which I cite to the Court from Moore’s Index, title Slat. Lim.) where the defendant, sued by an attorney to recover his charges respecting the grant of an annuity, had said* “ I thought it had been paid when the annuity was granted; but I have been in so much trouble since, I cannot recollect any thing about it,” was ruled in the same way, although the plaintiff proved the bill was not paid at the granting of the annuity.

But the cases of Laurence v. Hopkins, (13 Johns. 288.) and Clcmcntson v. Williams, (8 Crunch 72.) seem decisive to show that there must be either an express promise or a clear admission of a subsisting debt.

In the first of these cases, the Supreme Court of New York say, to take a case out of the statute there must be a promise express or implied; and no promise can be inferred from a declaration that he was not hoi den to pay any thing, that the contract could not be enforced at law, and that he never would pay any thing, as it was an unjust debt. And it was held farther, that an offer to compromise was not sufficient.

In the latter case, the Chief Justice, in giving the opinion of the Supreme Court of the United States, says, the statute of limitations was not enacted to protect parties, *512from claims, fictitious in their origin, but from ancient claims, whether well or ill founded, which may have leen discharged and the evidence of discharge lost. It is not then sufficient to take the case out of the act, that the claim should be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due.

In the case of Bryan v. Horseman, relied upon on the other side, there was an express admission that a part of the debt still was due; and if the decision was not grounded upon that fact, it is expressly contradicted by the cases of Coliman v. Marsh. (3 Taunt. 380.) and Ban-forth v. Culver, (11 Johns. 146.) The latter is a very strong case, for there the defendant had acknowledged the execution of the note, and said it was outlawed, and he meant to avail himself of the statute; and this acknowledgment was held to be insufficient. These cases are directly opposed to Leaper v. Taitón, relied on by the counsel on the other side.

I refer the Court to the case in 4 Esp. R. 184. to show that although the party aver that he is able to prove the matter of discharge relied on by written evidence, he is not called on to offer such proof; and though he fail to produce the proof, shall still have benefit of the statute. And I rely on this decision as an answer to the case of Beane v. Pitts, in 10 Johns.

The affidavit in this case, therefore, cannot take the case out of the statute, because it contains no admission of any debt, but, on the contrary, alleges a discharge from his guaranty by the improper conduct of the plaintiff.

But I allege, 2ndly, that the affidavit, if it did contain such acknowledgment as is required, cannot support this action, because made after the parties were at issue.

Notwithstanding what is said in Haylin v. Hastings, and in other cases, the acknowledgment does not operate as a waiver of the statute so as to set up the old promise, but gives a new cause of action, being evidence of a new *513promise supported by the consideration of the old debt. And upon this new promise the action is always founded.

In proof of this, I allege the form of pleading the statute. The plea is in bar of the action, «because he did not at any time within six years next, &c. undertake in manner and form.” The replication supports the declaration, and contradicts the plea by averring that the defendant « did within six years next before, &c. undertake, &c. in manner and form as he hath above thereof complained, <§'c.” See 2 Chitty 449. 605.

Here, plainly, the declaration, plea and replication, all refer to the same promise, that on which the action is founded. The replication does not allude to any new promise distinct from that relied on by the declaration. It seems analogous to the new assignment in Trespass Q. C. F. In the declaration there is a general description of the close, for it does not yet appear that the defendant, by pretending title to any close there, will render a particular description necessary. When the defendant pleads li-berum tenementum, the plaintiff then, by a new assignment, makes his description clear and certain to answer the defence. So in assumpsit, the declaration is general. When the defendant by pleading the statute makes time material, the plaintiff replies that the promise declared on was in due time. The promise referred to is the same in each stage of the pleading, and the plea and replication contest the time when that promise was made.

In farther proof of my position, I rely on the case of Green v. Crane, before referred to, and the cases of Sa-rell, administrator, v. Wine, (3 East 409.) and Ward v. Hunter, (6 Taunt. 210.)

These cases expressly decide, that in an action by an executor on an old debt of the testator where the statute is pleaded, the executor cannot give in evidence a new. promise to himself to take the case out of the statute, but must declare upon such new promise.

But if the acknowledgment or new promise removes *514the bar of the statute from the old promise, and gives that old promise new operation; if it merely gets rid of the statute, takes the case out of it, and places it in the same plight as if there were no such statute; how can these decisions be supported? But if the new promise be the foundation of the action, and the old debt is not revived, but is only a consideration for the new promise, then these decisions are clear and consistent; as an action alleging a promise to one, is not supported by proof of a promise to another.

TJie case of Whitaker v. Whitaker, (6 Johns. 112.) is accordant with the other cases, in support of the position I have laid down.

In farther proof, I refer the court to Bush v. Barnard, (8 Johns. 407.) and Davis v. Smith, (4 Esp. SC.) These cases show, that if the new promise be conditional, the plaintiff must show the conditions performed by him, or else he cannot recover. This is plainly absurd, if the effect of the new, is to set up the old promise, and enable the plaintiff to recover on that; tor the old promise on which, upon this supposition, the reeovery is effected, is unconditional. But all is clear, if the new promise, which Is coupled with a condition, be that declared on.

But the case of Danforth v. Culver, (11 Johns. 146.) is an express decision on the very question; and it is there held, “ that the acknowledgment does not revive the old debt, but is evidence of a new promise of which the former debt is the consideration.”

This position is not effected by the cases in the English books, where an acknowledgment after the commencement of the action is held sufficient to remove the bar of th e statute; for there the defendant may be arrested and held to bail before the debt is due, and if due when the plaintiff declares, it is sufficient. (11 East 118.) What will be sufficient as direct proof to sustain the action on « non assumpsit,” must of course be sufficient to repel the plea •of the statute of limitations. Though the expression is *515used,« since the commencement of the action;” yet I have found no case in which a promise after the parties were at issue was held sufficient by English authority. In the case of Deane v. Crane, as reported in 6 Mod. 309, the promise was after arrest and before declaration. So in the case in 4 Johns. 461, and also in the case of Lloyd v. Mound, (2 T. M. 760,) In this restricted sense, I understand the expression, « since the commencement of the suit;” for if it be extended as far as the plaintiffs in this case desire, great irregularity and inconvenience will ensue. If the defendant manage his one case (as he has a right to do) and on the trial tell the jury “that he admits the execution of the note, but relies on the statute,” which is exactly what his plea says and no more, he will thereby give the plaintiff a right to recover. And indeed the same result must follow from a similar statement of his defence by his counsel, as it is clear that any acknowledgment made by a party’s agent will as effectually take a case out of the statute as if made by the party himself. If saying, “ I admit the note, but rely on the statute,” will take from the defendant the benefit of the statute, it seems difficult to find a reason why pleading the statute should not have a like effect. An admission of record ought not to be less effectual than the same admission made by parol.

Farther, if it be a departure from the replication of a promise to plaintiff’s testator, to show in proof a promise to the plaintiff himself; it is quite as clear that proof of u, promise after the action brought is a departure from a replication averring a promise within six years before the action. If a jury cannot find for a plaintiff in the former, surely they cannot, with any regard to truth, ia the latter. I shall, therefore, take this to be. the true meaning of ttie expression, “since the commencement of the suit,” until the counsel on the other side show (which I am well persuaded he cannot) a decided English case which carries the meaning of that expression farther..

*516Upon the whole. I conclude, that the defendant’s affidavit cannot sustain the plaintiff’s action, because it contains no admission of a subsisting debt, and therefore no promise can be inferred from it; and because, if it did contain such admission, it cannot support this action, if having been made after issue joined; and, consequently, that the judgment of the Court below must be affirmed.

Gaston, in reply

It is not correct to say, that the legal debt has ceased by operation of time, and that a new promise is necessary to create a legal debt; to change the moral into a legal obligation: the remedy only is affected, the legal right remains; the words of the statute show this.

The imaginary evils which it is said would arise where a man directs his just debts to be paid, or an executor advertises to have claims presented, need not alarm us. As to the first, it is disposed of by a decision on the point. (1 Sch. & Lef. 109. 19 Ves. 470. 1 Hawks 304.) As to 'the second, there is no law produced to show that such advertisement would have the effect which is dreaded.

As to the doctrine that an acknowledgment is necessary, it is admitted; but it must be such an acknowledgment as on the facts, justifies the legal inference of a promise: and in all the cases cited for appellant, it will be found that the lawr on the facts infers a legal obligation, in technical language an implied assumpsit: nor can there be found an English dictum or adjudged case to controvert it. In Hanforth v. Culver, (11 Johns. 146.) it is indeed said, that an acknowledgment of the debt with a declaration that he wmuld not pay is insufficient to remove the bar: the case may well be questioned, decided as it was without argument and evidently without full consideration of the cases.

But it is said, that, as the declaration here was made subsequent to the suit, it connot he received.

The rule is laid down positively and unconditionally *517that it nniy be. Tea v. Fourakcr, (2 Burr. 1099.) Bryan v. Horseman, (4 East 598.) Rucker v. Haimay, (Ibid603.) The rule, when understood, is not absurd: the plaintiff’s cause of action cannot be supported by facts occurring afterwards, but it may by subsequent evidence of facts previously existing. The subsequent declaration is evidence that, when the suit was brought, the facts on which the law raises the promise existed.

Hall, Judge.

I think the acknowledgment in the affidavit, relied upon by the plaintiffs to take their claim out of the operation of the statute of limitations, is not sufficient for that purpose. The defendant states in his affidavit, that the action is founded on his guaranty, but ho makes no acknowledgment of a present subsisting debt, The cases that come the nearest to this are, Bryan v. .Horseman, (4 East 599.) and a case in 16 East 419. In these cases the defendants acknowledged a present subsisting debt, but relied solely on the statute of limitations as a bar to the payment of it. Although in this case, the defendant relies upon the laches of plaintiffs in giving time to the Mills, he does not state that that was his only ground of defence, he might have had others independant of that, and independant also of the statute of limitations. As in addition to this he makes no acknowledgment of a debt, Í think judgment should be entered for him.

Henderson, Judge.

I wish not to express an opinion upon what kind of an acknowledgment, accompanied with a refusal to pay, will take a case out of the statute of limitations; for, perhaps, I should do nothing more than add another decision to the many irreconcilable ones already made upon the subject. I will, therefore, confine myself strictly to the case upon the record. This acknowledgment, if it be one, is contained in an affidavit offered for the continuance of this cause. The affidavit, so far as it relates to the case, states, that he the defendant *518is sued upon a guaranty of a note; that he expects to prove by the absent witness, laches or neglect on the part of the plaintiff which discharges him from his guaranty. ®y Iaw> or rather by the rules of the Court, he was bound to show the materiality of the absent witness, otherwise he could not obtain a continuance. The statement was, therefore, made with that intent, and that intent only; it was not intended as a full disclosure of his case, or cannot be so understood by the jury, that is of itself. It does not import it; for aught that appears, he might have other grounds or reasons, to show that the debt was not an unsatisfied one. It is entirely unlike the case where, in conversation, a bar or reason is interposed why a person should not pay a demand, if that bar or reason should be found false or insufficient, as in the case of a discharge under a commission of bankruptcy, or the like. There it may with probability be inferred that the consideration is unsatisfied, for the bar was interposed for that purpose and that alone, and if false or unfounded, it fails in its designed effect. And the mode of making the acknowledgment admitted of as wide a range as the defendant chose. I say, therefore, in such case, the statement being made with a view to show that the debt was not due, and with no other view, it is not a forced construction to say, that all the reasons, or at least the most prominent ones,, were introduced; and if they are unfounded, the unsatisfied consideration still subsists, and upon which the law raises a promise; notwithstanding an express refusal is made to pay the debt. But I beg to be understood as expressing no opinion even in such case, that is, in pointing out any rule where the debt is revived and where it is not; for I can readily imagine cases where I think it should he; all that I mean to say is, that this case is unlike them, from the mode in which the acknowledgment is made. It is not (from this view of the case) necessary to say whether the action is founded on the old or new promise. The weight of authorities is much in favour of the old promise. *519and that the new promise repels the bar o: the statute; and although the principle may be the other way, as I rather think it is, the authorities are too old and too numerous to be gotten over. If one of two partners after dissolution, promises to pay, the debt is revived as to the other, and in an action brought against him alone such promise may be relied on to repel the plea of the statute. This is conclusive, for he neither made the new promise, nor was it made by one then authorised to bind or act for him; the action, if sustained, must be on the old promise.

I think, therefore, the cases which say, if an executor sues on a promise made to the testator, and the statute of limitations is relied on, that he cannot give inevidenGea promise or acknowledgment made to himself to take it out of the statute Tor they say that is a departure,) are wrong if the others are right; they should, therefore, be disregarded, if the others are adhered to.

By the Court,

Judgment affirmed.