Tilghman C. J.
This action was brought on a promissory' note dated the 12th of February 1799, given by Robert Gray deceased to Bond and Brooks, payable sixty days after date, and indorsed by Bond and Brooks to William Wister deceased. Issue was joined on the statute of limitations; and on the trial several letters from the defendant Moore, were read in evidence, from which the jury, agreeably to the opinion of the judge before whom the cause was tried, inferred a promise to pay the debt. It was reserved as a point for the decision of the Court in bank, whether supposing a promise by the defendant to have been proved, it supported the plaintiffs’ declaration, which was founded on a promise to William Wister the testator. I will consider first, whether such a pro[577] mise will support the declaration, and secondly, whether the letters warranted the conclusion drawn by the jury.
1. The act of assembly declares, that the action shall be commenced, “ within six years next after the cause of such “ action, and not after.” If six years elapse after the cause of action accrued, there can be no recovery, although the debt is not extinguished. It remains due in conscience, and is a good consideration for a new promise. It remains in some respects due in law too, for if the defendant omits to plead the act of assembly, he is considered as having waived the benefit of it, and the plaintiff may recover against him. The letters of the defendant are said to contain an acknowledge ment of the debt, which, as the plaintiffs’ counsel contends, is sufficient per se, to take the case out of the statute, not because it is evidence of a new promise, but because it revives the debt. There is some confusion, and perhaps some inconsistency in the cases on this subject; but it appears to me from the reason of the thing, and from a review of all the cases, that an acknowledgment of the debt can only be considered as evidence of a new promise, or what is pretty much the same thing in substance, as a circumstance from which the law will imply a new promise. To consider this matter on principle. When the defendant pleads non assumpsit infra sex annos, and the plaintiff replies assumpsit infra sex annos, how can the issue be found for the plaintiff, without proof of a promise express or implied within six yéars? It is the very point, and the only point in issue. I cannot comprehend the meaning of reviving the old debt, in any other manner than by a new promise. But if there was a new promise in the present case, it was to the plaintiffs the executors, and not to their testator as stated in the declaration, and therefore the declaration would not be supported. Let us see next how the authorities stand. The case of Heylin v. Hastings, is reported in 1 Ld. Ray. 389. 421., 12 Mod. 223., Comyns 54., 1 Salk. 29., Carth. 471. The report in Cart hew is not so good as in the other books. It was an action of general indebitatus assumpsit, by an executor for goods sold &c. by his testator. Issue was joined on the statute of limitations; and the plaintiff recovered on proof of the debt, and evidence of a promise within six years to the executors, to pay the debt if they could prove it. Lord Holt consulted all the judges of England, and they were all but two of opinion that an acknowledgment of the debt was sufficient evidence of a [578] promise, .but did not of itself amount to a promise. It was “ taken for granted that the plaintiff was entitled to recover, but the point does not appear to have been considered, that supposing a promise to have bern made, it was a different promise from that laid in the declaration, viz. a promise to the executor and not to the testator. In subsequent cases ■ this point has been brought directly into question, and it has been decided, that where the promise is laid to have been made to the testator, it cannot be supported by proof of a promise within six years to the executor. In Green v. Crane, 2 Ray. 1101, reported by the name of Dean v. Crane, in 1 Salk. 28. and 6 Mod. 310., the declaration was on a promise to the testator, issue on non assumpsit infra sex annos, and evidence of a promise within six years to the executor; held that the evidence did not support the declaration, and this by Lord Holt who delivered the opinion of the judges in Heylin v. Hastings. In the Duke of Marlborough’s exrs. v. Widmore, 2 Stra. 890., the declaration was on a promise to the testator, issue being joined on the statute of limitations; the plaintiffs were' permitted to amend by laying the promise to the executors, on payment of costs. In Hickman v. Walker, Willes’ Rep. 27, the declaration laid a promise to the testator, the defendant pleaded the statute of limitations, and the plaintiff replied, that letters testamentary were committed to him within six years, by which cause of action accrued to him; held to be a departure, because jt was a different cause of action from that laid in the declaration. In 2 Saund. 63 a. (notis) the cases are all collected and the principle asserted, that where an acknowledgment or promise has been made to the executor, it should be declared on accordingly, and a declaration laying a promise to the testator cannot be maintained. The same pt tnciple seems to be adopted by the Supreme Court of New York, in Whitaker v. Whitaker, 6 John . 112. From those authorities, and from the nature of the issue joined in this case, it appears to me that the evidence such as it was did not support the declaration, because it tended to prove a promise to the executors more than six years after the death of the testator.
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Tilghman C. J.
This action was brought on a promissory' note dated the 12th of February 1799, given by Robert Gray deceased to Bond and Brooks, payable sixty days after date, and indorsed by Bond and Brooks to William Wister deceased. Issue was joined on the statute of limitations; and on the trial several letters from the defendant Moore, were read in evidence, from which the jury, agreeably to the opinion of the judge before whom the cause was tried, inferred a promise to pay the debt. It was reserved as a point for the decision of the Court in bank, whether supposing a promise by the defendant to have been proved, it supported the plaintiffs’ declaration, which was founded on a promise to William Wister the testator. I will consider first, whether such a pro[577] mise will support the declaration, and secondly, whether the letters warranted the conclusion drawn by the jury.
1. The act of assembly declares, that the action shall be commenced, “ within six years next after the cause of such “ action, and not after.” If six years elapse after the cause of action accrued, there can be no recovery, although the debt is not extinguished. It remains due in conscience, and is a good consideration for a new promise. It remains in some respects due in law too, for if the defendant omits to plead the act of assembly, he is considered as having waived the benefit of it, and the plaintiff may recover against him. The letters of the defendant are said to contain an acknowledge ment of the debt, which, as the plaintiffs’ counsel contends, is sufficient per se, to take the case out of the statute, not because it is evidence of a new promise, but because it revives the debt. There is some confusion, and perhaps some inconsistency in the cases on this subject; but it appears to me from the reason of the thing, and from a review of all the cases, that an acknowledgment of the debt can only be considered as evidence of a new promise, or what is pretty much the same thing in substance, as a circumstance from which the law will imply a new promise. To consider this matter on principle. When the defendant pleads non assumpsit infra sex annos, and the plaintiff replies assumpsit infra sex annos, how can the issue be found for the plaintiff, without proof of a promise express or implied within six yéars? It is the very point, and the only point in issue. I cannot comprehend the meaning of reviving the old debt, in any other manner than by a new promise. But if there was a new promise in the present case, it was to the plaintiffs the executors, and not to their testator as stated in the declaration, and therefore the declaration would not be supported. Let us see next how the authorities stand. The case of Heylin v. Hastings, is reported in 1 Ld. Ray. 389. 421., 12 Mod. 223., Comyns 54., 1 Salk. 29., Carth. 471. The report in Cart hew is not so good as in the other books. It was an action of general indebitatus assumpsit, by an executor for goods sold &c. by his testator. Issue was joined on the statute of limitations; and the plaintiff recovered on proof of the debt, and evidence of a promise within six years to the executors, to pay the debt if they could prove it. Lord Holt consulted all the judges of England, and they were all but two of opinion that an acknowledgment of the debt was sufficient evidence of a [578] promise, .but did not of itself amount to a promise. It was “ taken for granted that the plaintiff was entitled to recover, but the point does not appear to have been considered, that supposing a promise to have bern made, it was a different promise from that laid in the declaration, viz. a promise to the executor and not to the testator. In subsequent cases ■ this point has been brought directly into question, and it has been decided, that where the promise is laid to have been made to the testator, it cannot be supported by proof of a promise within six years to the executor. In Green v. Crane, 2 Ray. 1101, reported by the name of Dean v. Crane, in 1 Salk. 28. and 6 Mod. 310., the declaration was on a promise to the testator, issue on non assumpsit infra sex annos, and evidence of a promise within six years to the executor; held that the evidence did not support the declaration, and this by Lord Holt who delivered the opinion of the judges in Heylin v. Hastings. In the Duke of Marlborough’s exrs. v. Widmore, 2 Stra. 890., the declaration was on a promise to the testator, issue being joined on the statute of limitations; the plaintiffs were' permitted to amend by laying the promise to the executors, on payment of costs. In Hickman v. Walker, Willes’ Rep. 27, the declaration laid a promise to the testator, the defendant pleaded the statute of limitations, and the plaintiff replied, that letters testamentary were committed to him within six years, by which cause of action accrued to him; held to be a departure, because jt was a different cause of action from that laid in the declaration. In 2 Saund. 63 a. (notis) the cases are all collected and the principle asserted, that where an acknowledgment or promise has been made to the executor, it should be declared on accordingly, and a declaration laying a promise to the testator cannot be maintained. The same pt tnciple seems to be adopted by the Supreme Court of New York, in Whitaker v. Whitaker, 6 John . 112. From those authorities, and from the nature of the issue joined in this case, it appears to me that the evidence such as it was did not support the declaration, because it tended to prove a promise to the executors more than six years after the death of the testator.
2. I will now consider the evidence, which consisted of five letters from the defendant to John Wister, one of the plaintiffs. In the first the defendant asks the plaintiffs whether he is at liberty to pay over the assets in his hands to the [579] representatives of Gray, or whether he must withhold them, until the plaintiffs' claim, was satisfied. In the second letter" the defendant says, that he can make no composition but at his own risk, and that Mr. Bond well knew that no part of the money came to Gray's hands. In the third letter, the defendant asks to be informed of the result of the arbitration between the plaintiff and Bond, The fourth letter contains nothing material. In the fifth the defendant acknowledges the receipt of a letter from Wister, informing him of the decision" of the arbitrators betvyeen the.plaintiffs and Bond, and adds, “ I expect to be in the city in a few days, and “ will settle the matter some way.” From the whole of these letters it appears that the defendant knew of the plaintiffs’ claim and never denied it, on the contrary, he constantly recognised it as an existing debt. The dispute was not with the plaintiffs, but with Bond and Brooks, the indorsers of Gray's note, and who, as Gray said, received the money which was the consideration of the note. The last letter is something very like an express promise; “ settling the matter some way," would lead a person to expect some kind of satisfaction. It is certainly much stronger evidence of a promise, than several of the cases which have been held sufficient to take a case out of the statute of limitations. I agree therefore with Judge Brackenridge, that the jury were justified in presuming a promise, but as it was a promise not to the testator but to the executors, it varied from the declaration, and did not support the issue on the part of the plaintiff's. On this ground, I am of opinion that the verdict should have been for the defendant, and therefore there should be a new trial.
Yeates J.
The plaintiff declared in this case on a promissory note dated the 12th of February 1799, drawn by Robert Gray in his life time, payable to Bond and Brooks, and by them indorsed to William Wister in his life time. The promise to pay is stated to have been made by Gray to Wister, the former of whom died in November 1805. The defendant pleaded the act of limitations and the plaintiffs replied thereto. Upon this issue nothing can be more clear in point of fact, than that a promise made by the administrator of the intestate, to one of the executors of the testator, would not shew a promise by the intestate to the testator. And considering the matter in a legal view, letters written by the defendant’s-[580] administrator to the plaintiff’s executor, could not be received in evidence in the manner the plaintiffs have declared, to prove an acknowledgment of the debt, so as to take it out of the statute of limitations. In such instances if is absolutely necessary, after stating the true namre of the demand according to its circumstances, to insert a count shewing specially the promise to pay by the executor or administrator. This I take to have been abundantly proved by the cases adduced by the defendant’s counsel, and particularly by Hickman et al. exrs. v. Walker, Willes 27. On the reserved point therefore, I am clearly of opinion that a new trial should be awarded. The plaintiffs upon application to the Court will be allowed to add the special count to their declaration, and they will then have the full benefit of the evidence.
But the Court are now called upon, to express their sentiments on the legal operation of the letters which were read on the trial, as it may save further litigation between the parties.
I hold the act of limitations to be a most beneficial law, and that it strongly tends to the peace and quiet of social life. The consequences of aiding stale demands, where vouchers may have been lost, and material witnesses have paid the common debt of nature, are obvious to every one. Some hard cases it is true may have occurred under the act, wherein the recovery of fair and honest debts may have been barred by7 its operation; but on the score of sound policy, it is better to submit to private inconvenience, than introduce a general mischief. My judgment is not yet prepared to go to the extent of some of the cases decided on this subject. We are told in the books that an acknowledgment of a debt is only evidence of a promise to pay it. Where it is accompanied by circumstances or declarations, that the party means to insist on the benefit of the statute, no promise to pay can possibly be implied without violating the truth of the case, and so it has been decided.
There was much truth in the observation of the defendant’s counsel, that declarations by executors or administrators respecting demands brought against them, should not be construed so strictly against them, as if made in their individual character, where they must be supposed to be conusant of their duties as well as rights. Inquiries may fairly be made by persons in their representative character, concerning the justice [581] óf claims made against their testator or intestate, which in heir personal capacity well might be supposed to imply a' promise to pay them. Under these impressions, I at first doubted, whether the letters could be construed as an acknowledgment of the justice of this debt. My doubts have been removed on more mature reflection.
In Mr. Moore's letter of the 7th of December 1807, he desires infoimation whether he is at liberty to write to the intestate’s heirs to call on him for the assets in his hands; or whether he must hold them, until this claim is satisfied. He evidently treats this claim as just, and submits to the executors whether he should retain the assets in his hands to discharge it. No evidence was given on the trial of the ground of the action brought by the executors against Bond; but it is most highly probable from the other letters which were written, that it was founded on his indorsement. So it is stated by the plaintiffs’ counsel, and if the fact be so it is capable of proof on another trial. The meaning of the first letter then, would plainly be, whether the executors would look to Bond and Brooks as indorsers, and give up their demand on the estate of the drawer. The letters written by the executors to Mr. Moore were not produced on the trial,-but they may be shown at a future day, il it should be thought that they can throw light on the true meaning of the administrator. His letter of the 26ch of July 1810, acknowledges the receipt of Mr. Wister's letter informing him of the decision of the arbitrators m Bond's business; and he therefore says, he should be in the city in a few days, and -would settle the matter in some -way. This is powerful evidence connected with the former letter in 1807, and unless they can be fully explained, they amount to such an acknowledgment of the debt, as will take the case out of the act of limitations.
Brackenridge J.
I am not about to dissent from the Chief Justice; it was my way of thinking on the trial as to the result of the case. Nevertheless I will add some observations- which may perhaps in some particulars be different. It is the language of some judges on the benches of England, that if the statute of limitations was for the first time to receive a construction, nothing in the nature of an exception to take a case out of the statute would be admitted. I incline to be of a contrary way of thinking, on the principle that a [582] statute bearing on a contract uberrimce Jidei which is their 'own language, ought to have a liberal application. Who ever heard of a statute under which there were not equity exceptions? In applying the statute and ascertaining them, we must look at the mischief which the statute was intended to remedy. This was principally the advancing stale claims in the case of honest but improvident debtors, who may have lost the evidence of papers, or testimony of witnesses who could have established a discharge of the debt. The statute goes on this presumption of payment, where a time has elapsed without a demand made; but where that presumption is removed by an acknowledgment of the debt, it has been considered a case out of the statute, because out of the reason of it.
That a bare acknowledgment of the debt, without any promise to pay, may well take a case out of the statute, is laid down in the English tracts, and sactioned by elementary writers abundantly. I will refer only to 2 Sound. 64., Selwyn’s Ni. Pri. 122. A distinction was formerly taken, says Serjeant Williams, in his note, between a promise to pay and a bare acknowledgment, but no longer regarded, it being now settled that an acknowledgment of the debt takes it out of the statute. And also Selwyn 126, that howeVer it was ruled in Heylin v. Hastings, yet from the language of more modem decisions it must be inferred, that the mere finding by a jury of an acknowledgment of the debt within six years of action brought will be sufficient. But it is laid down also and sanctioned by Lord Mansfield, not to speak of later authorities, that an acknowledgment may be inferred even from equivo-' cal expressions. A letter written in ambiguous terms shall be left to the jury to say, whether it amounts, not to a promise, for that is not the language in the books to which I refer, but to an acknowledgment. The "bare saying that no demand had been made within six years, has been left to the jury as evidence of an acknowledgment, who found accordingly, and a new trial refused. It has been said that the slightest acknowledgment will take a case out of the statute, as when defendant said, “ I am ready to account, but nothing is due.” But what is more, circumstances will take a case out of the statute, from which may be inferred an acknowledgment. The idea of a new promise, which is sometimes introduced in the English decisions, does not appear to be on principle correct. The saying your demand is barred by the statute, and [583] Í will not pay, has been held an acknowledgment of the debt, and taken the case out of the statute. How could there be a" new promise here? The truth is, it is the old promise that is continued, or as some choose to say, revived. A new promise would be a nudum pactum without a reference to the consideration of the old. Why then not go upon the old promise, and allege it as still continuing, by force of the acknowledgment of a consideration still existing. The replication to the statute, of an acknowledgment of the debt within six years, and demurrer to this, would it prevail? Why then, not the promise laid as made to the deceased? It is laid down by Lord Mansfield, 2 Burr. 1099,'“ that an acknowledgment “ of the debt even after action commenced, takes the case “ out of the statute.” In that case the promise laid in the declaration could not be the promise raised by the acknowledgment; which proves that the language of a new promise, or reviving a promise, is incorrect, and it is the original promise that ought to be declared upon, unless in the case of an express promise to pay, and undertaking by a representative,making the .debt his own. The idea of anew promise is a fiction introduced by the astutia of the courts, to take a case out of the statute, and yet preserve .the forms of pleading as before. This is done by reciting the original promise as a consideration of the new, which by a technical fiction is alleged to be made. But it would have answered the same purpose, and superseded the necessity of a fiction, to have replied specially to the plea of the statute, that the defendant had acknowledged the debt within six years. I am clear that such a special replication could not but be sustained. In the case before us therefore, I would give leave to withdraw the joinder in issue on the plea of yion assumpsit, and reply specially according to the truth of the case and in bar of the defendant’s plea, that he had acknowledged the debt within six years. This would be my way of proceeding, and what I would ask leave to do in order to get quit of the fiction of a promise, which the common mind cannot comprehend. But if it is preferred to follow the old forms and stick to the fiction, it may be done by asking leave to change the declaration by alleging a new promise in consideration of the old, or adding a second count. According to the law now holden, it will come to the same thing; but I prefer the simplicity of truth where fiction mayas well [584] be avoided. It is more comprehensible by the student of the law, and will mar less the good sense and logic of the science of pleading.
But the giving leave to do one or the other of these must depend upon the evidence of an acknowledgment of the debt by the defendant. I am of opinion now as I was at the trial, that there was evidence of an acknowledgment sufficient to take the case out of the statute. This being the case, I have wished to support the pleadings; but the taking issue on the plea of non assumpsit seems to be in the way. I am constrained to say there shall be a new trial, with leave to amend; though as the defendant must see that it can answer no other end than to give delay, I would recommend the payment of the demand, according to the verdict, unless he chooses to take the sense of another jury on the fact of acknowledgment. I find a dictum upon the point in the charge of the Court, that the special matter may be pleaded. 8 Mass. Rep. 129. “ The defendant pleads what is prima facie a legal bar “ to the plaintiff’s demand. The plaintiff replies other matter “ which shews the defendant to be bound.” And 134. “ The “ sound principle which ought to govern in the construction “ of the statute (of limitations) is, that a presumption arises u that the defendant from the lapse of time has lost the evi- “ dence which would have availed him in his defence, if sea- “ sonably called upon for payment. But when this presumption is rebutted by an acknov/ledgment of the defendant “ within six years, the contract is not within the intent of the “ statute.” So that I cannot doubt, but that if the defendant were to say, “ the debt is so, but I will not pay,” he would be liable. This puts an end to all idea of a promise, unless by technical fiction or legal implication, the necessity if not absurdity of which may be avoided by pleading the special matter.
New trial granted