Buchanan, Ch. J.
delivered the opinion of the Court. The appellee rests his defence upon the act of limitations of this state, on the effect and operation of which we are called upon to decide; and we approach the subject not'without hesitation, surrounded and obscured-as it is, by a cloud of discordant adjudications. Perhaps there is not a British statute which has given birth to so many conflicting .decisions, as the statute of the 21 James I, ch. 16, the statute of limitations of that country; and we are familiar with the expressions of regret, by the eminent men who have sat in the judicial tribunals there, that the letter of that statute was over departed from; a.regret for which sufficient cause is to be found in the incongruity presented by the numerous decisions on that branch of the law.
The statute of James was never held in England to extinguish the debt, but was always, understood as operating upon [213] the remedy only. In Heyling vs. Hastings, 1 Ld. Raymond, 389, Holt, Chief Justice, said that “the statute of limitations was founded upon very good reason, because men should not unravel contracts so long after, upon a supposition, that if they were not paid, they would sue sooner; and acquittances being subject to be lost, a man might be sued for what he had paid before.” In Quantock vs. England, 5 Burr. 2628, Lord Mansfield said, “it was settled that the statute of limitations did not destroy the debt, but only took away the remedy.” In Mountstephen vs. Brooke, 5 Serg. & Low. 245, Abbott, Chief Justice, said, “the statute was passed to protect persons who were supposed to have paid the debt, but to have lost the evidences of such payment.” Hence after a consultation with all the judges, but one, it was stated by Lord Holt, in Heyling vs. Hastings, 1 Lord Raymond, 421, to be their unanimous opinion, that a promise by the defendant, at any time within six years before the commencement of the action, to pay the debt, was sufficient to take the case out of the statute. But that a bare acknowledgment of the debt within that period was held to be evidence only of a promise, and therefore not of itself sufficient. This distinction prevailed for a long time, but was at length broken down, and ceased to be regarded.
In Yea vs. Fouraker, 2 Burr. 1099, it was ruled that an ac» knowledgment of the debt, even after the commencement of the action, took it out of the statute ot limitations. In Quantock vs. England, a submission to a commission of bankruptcy by a debtor, after the debt had been of more than six years standing, was held to be a waiver of the benefit of the statute, and such an acknowledgment as took the case out of it; and Lord Mansfield said, that the slightest word of acknowledgment would do it. And in Trueman vs. Fenton, 2 Cowp. 548, he said, “the slightest acknowledgment has been held sufficient; as saying, prove your debt and I will pay you; I am ready to account, but nothing is due to you. And much slighter acknowledgments than these will take a debt out of the statute. ”
These cases have been followed by a series of decisions from that time to this, by which this principle at least is now fully settled, that an acknowledgment of the debt by the defendant, within six years before the bringing of the suit, is sufficient to [214] take the case out of the statute of limitations; and very slight evidence, indeed, of an acknowledgment, has sometimes been deemed sufficient. In Leaper vs. Tatton, 16 East, 420, Lord Ellenborough said, “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.” In Sluby vs. Champlin, 4 Johns. Rep. 461, Yates, Justice, who delivered the opinion of the court, said, ‘.‘it is now generally received as law, that if a party acknowledges a debt to be unpaid, it is such a waiver, of the protection of the statute as to repel the presumption of payment, being a recognition of the former liability.” And in Sturges vs. Crowninshield, 4 Wheat. 307, Chief Justice Marshall said, “statutes of limitations relate to the remedies which are furnished in the courts. They rather establish, that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its performance.”
Since the case of Sluby vs. Champlin, the distinction which formerly prevailed in England between a promise to pay, and an acknowledgment of the debt, has been revived in New-York; and now, both in that state, and in Pennsylvania, the latter is held to be evidence only, to be left to the jury, of a promise to pay. Proceeding upon that principle, it seems to fee settled in those stales, that though a slight acknowledgment of the debt, when standing alone, will be sufficient,'yet that if the debtor qualifies his acknowledgment in such á manner as to show it is his determination not to pay, the statute, will protect him; as where a man admits the debt to be due, but declares that he intends to insist on the benefit of'the statute. (Murry vs. Tilly, cited with approbation in Fries vs. Boisselet, 9 Sergt. & Rawle. 131;) or admitting it to be due, declares that he will not pay -it — as in Fries vs. Boisselet, where the proof was that the defendant on being arrested, said he owed the plaintiff the money, and intended to have paid him, but that he had' taken ungentlemanly steps to get it, and as he had taken those steps he would keep him out of it as long as he could; which was held not to be. sufficient to take the case out of the statute. And the same principle is fully recognized in Sands vs. Gelston, 15 Johns. Rep. 511, and Roosebelt vs. Mark, 6 Johns. [215] Ch. Rep. 266. The only difference between the aet of limitations in this state, and the statute of James is, that here the limitation is but three years; and in this state, the rule prevailing in England, that an acknowledgment of the debt by the defendant within the time prescribed for bringing the suit, is sufficient to take ihe case out of the statute, has been adopted. In Barney vs. Smith, 4 Harr & Johns. 485, the venerable man who then presided, Judge Chase, said “the act of limitations does not operate to extinguish the debt, but to bar the remedy. The act of limitations proceeds upon the principle, that from length of time a presumption is created, that the debt has been paid, and the debtor is deprived of his proof by the death of his witnesses, or the loss of receipts. It is the design of the aet of limitations to protect and shield debtors in such a situation; and consistent with this principle and this view, the decisions have been made, that the acknowledgment or admission of the debt will take the case out of the act of limitaiions; because,, if the money is still due and owing, the defendant has not suffered from the lapse of time, nor has any inconvenience resulted to him therefrom.” And again, in another part of his opinion, he says, “the acknowledgment to the surviving partner saves and preserves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise.” We, therefore, are not called upon now for the first time to give a construction to that act; that task has been performed by others, at whose hands we have received it, with their interpretation of it, from which, if we were disposed to do so, we should not feel ourselves at liberty to depart.
Perhaps it. would have been better, if instead of endeavouring to rescue particular cases out of its operation, the letter of the statute had been strictly adhered to; if the original debt had always been considered as extinguished, and the moral obligation, treated as a sufficient consideration for an express promise to pay, on which to found an action. But according to all the cases, (for in this at least they agree,) the debt is consi*\ dered as not extinguished, and the defendant can only avail himself of the statute in England, and act of assembly here, by pleading it; which, if he omits to do, it is held to bes wars'[216] er of its benefit, and the plaintiff may recover on the general issue, though the debt should appear by the declaration to be of longer standing than the limited period. This settled construction has produced all the difficulties and discrepancies complained of; but it is a construction which is not now to be shaken by us: nor on the other hand should its operation be extended further than it has already gone.
Taking the act of limitations, then, as we.find it, operating upon the remedy only, and not as extinguishing the debt; and feeling the necessity for a more definite and certain understanding of the effect of the adopted construction, than can easily be collected from particular cases, we will endeavour, not to> reconcile the Various decisions that are to be found in the books on this subject, but to lay down some general rules for the practical application of the principles they establish; that the act does not extinguish the debt, but only bars the remedy, and that an acknowledgment by the defendant of the debt, or a promise to pay it within the'time prescribed, is sufficient to revive'the action.
First, then, the suit is to be brought on the original cause-of action, and noton the new promise or acknowledgment, which only has the effect to restore the remedy; which is not only according to the common practice,'but is directly and strongly asserted in Barney vs. Smith.
Second. It need not be absolute and unconditional, but a conditional promise is sufficient; and in such case, it is incumbent; on the plaintiff to show at the trial, either a performance of the condition, or a readiness to perform it; as if the words be, prove your debt, and I will pay you, which is an express promise to pay, on condition that the debt, is proved. Heyling vs. Hastings, 1 Ld. Raymond, 389. Trueman vs. Fenton, 2 Cowper, 548. Davies vs. Smith, 4 Espinasse Rep. 36 Loweth vs. Fothergill, 4 Camp. Rep. 185. Bush vs. Barnard, 8 Johns. Rep. 407. These cases furnish different examples of conditional promises to pay, each of which was held sufficient to take the case out of the statute.
Third. An acknowledgment, to take the case out of the act of limitations, must' be of a present 'subsisting debt, unaceom-. ¡panied by any qualification or declarations, which, if tree* [217] Would exempt the defendant from amoral obligation to pay. For the law will not raise an 'assumpsit, or imply a promise to pay, what ia equity and good conscience a man is not bound to pay. As if the defendant admits the debt, but at the same time resists the payment of it by alleging that he has a set-off against it, and that the plaintiff owes him more money; which' virtually amounts to a denial of his liability, and a refusal to pay any part of it, on grounds furnishing a sufficient moral excuse for not paying it. And indeed, taking the whole of the acknowledgment together, (which must always be done,) is ia effect equivalent to a declaration that the debt is discharged. It it were otherwise, and the plaintiff was permitted to avail himself of the acknowledgment of the debt, and to reject the qualification, injustice would always be done where the set-oili, claimed by the defendant, should be itself barred by the act, or he should be in want of testimony sufficient to support it. Or, if he admits the receipt of money, and that it has not been paid, but claims it as a gift; which, if true, would exempt him. from any liability to pay. Or, if on being called upon, the party says he has paid the debt, and will furnish the receipt, hut fails to do so, this will not be sufficient to charge him; but' is the very case intended to be provided for by the act, the case of a man who is supposed to have lost his evidence of payment.
Fourth. An acknowledgment of the debt, with a naked refusal to pay, or a refusal accompanied with an excuse for not paying it, which in itself implies an admission that the debt remains due, and furnishes no real objection to the payment of it, is sufficient.
Fifth. Any unqualified acknowledgment of a present subsisting debt, or acknowledgment, with no other excuse for not paying it than a reliance on the bar created by the act of limitations, is sufficient to take it out of the act. Clarke vs. Bradshaw & Coghlan, 3 Esp. Rep. 155. Bryan vs. Horseman, 4 East, 599. Evans, in the notes to his translation of Pothier on Obligations, suggests to those whose claims are barred by the statute, and who wish to obtain an acknowledgment of the subsistence of the debt, the utility of filing a bill of discovery, and adds, “if the subsistence of the debris ad" [218] Knitted, and without perjury it cannot be denied, it will not, if “there is any consistency of decision, be of any avail to add a claim to the protection of the statute.”
The act of limitations, according to the received construction, proceeds, upon the supposition, that from length of time the debt is paid, and was only intended to protect a party where the presumption arising from lapse of time is, either, that the debt has been discharged, or never existed, and not to protect him from a debt acknowledged by himself to be still due and unpaid, with no other excuse for not paying it than the supposed bar created by the act. When, therefore, a party admits the debt to be due, but standing upon the act of limitations alone, in the sarhe breath refuses to pay it, he admits a case, to which the act, according to its spirit and reason, does not apply, under the interpretation given-to it, and his refusal cannot avail him. But the continuing existence of the debt continues and carries-with' it the implied assumpsit that the law raises, which is not rebutted by his refusal to pay. Hence the very common use in the books of the terms “takes the case out of the statute of limitations;” that is, that it is a case not embraced by the statute.
■Sixth. The acknowledgment of the debt may be in whole <or in part.
Seventh. It is sufficient if it be after the bringing of the suit. Yea vs. Fouraker, 2 Burr. 1099. Which could not regularly be if it stood upon the footing alone of evidence only of a new promise, the replication being assumpsit infra tres tmnos before the bringing of the suit, and confining the issue to a time within that period; so that an acknowledgment, made after the bringing of the suit, would not be within the issue. The issue, therefore, in such a case, must be sustained on the part of the plaintiff, on the idea of an implied promise, continuing and running with the old debt acknowledged to be still due.
Eighth. An admission that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, that the debt once existed.
Ninth. The acknowledgment need not be made to the plaintiff himself, but may be made to any body else.
[219] Tenth. What kind of promise or acknowledgment is suffieient to take a case out of the act of limitations, is for the court to decide; and the evidence offered to prove such promise or acknowledgment, is proper to be submitted to the jury, as in ether cases, under the direction of the court.
It has been contended in this case, that where the defendant alleges the debt to have been discharged, and refers to a particular mode of discharge, the plaintiff may entitle himself to recover by disproving the mode of discharge referred’ to. We are aware that the’ same has been said elsewhere. In Hellings vs. Shaw, 2 Serg. & Low. 236, Chief Justice Gibbs said, “where the defendant has stated, not that the debt remained due, but that it was discharged by a particular means, to which he has with precision referred himself, and where he has designated the time and mode so strictly, that the court can say it is impossible it had been discharged in any other mode. There the court have said, if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely.” But afterwards, in Beale vs. Nind, 6 Serg. & Low. 517, Justice Bayley, afser reciting the words of Chief Justice Gibbs, says, “I certainly am not aware of the cases to which my Lord Chief Justice Gibbs refers to support that proposition.” Thus strongly questioning the soundness of the proposition, to which, (seeing the inroads that have already been made upon the statute, which we are not disposed to push any farther, and no such decision having been made by this court,) we are not prepared to yield our assent; but think that every acknowledgment of a debt, which is offered to take a case out of the act of limitations, must be taken all together; and' that no evidence can be received to turn a denial of the existence of the debt into an acknowledgment of a subsisting liability, by proving that he was mistaken in supposing it to have been paid. Which would be to take a case out of the act of limitations by other proof than the acknowledgment of the party; for in such a case he manifestly not only does not intend to acknowledge a present subsisting debt, but in fact denies it, and there is nothing to carry, or on which the law can raise an implied assumpsit. The declarations of the defendant are the plaintiff’s own prooij) [220] and if he chopses to introduce them, he must be content to $ake them as they are, and cannot be permitted to disprove thdm by other evidence, in order to raise an implied promise, pr to furnish eyidence of a promise to pay a debt, the existence of which is denied. With these views of the subject we do not .think, from the evidence set out in the record, that the plaintiff is entitled to recover. Whatever might have been the effect of the expressions of regret by the defendant, if they stood alone, “that the plaintiff had been excluded from the deed of trust, and had not been allowed to crime in for his claim,” the declarations, always accompanying them, “that he did not consider that he was indebted to the plaintiff, because he had it in his power to have saved himself with the securities received from William Taylor, and ought not,' therefore, to have looked to him for the money,” sufficiently show that it never was his intention to acknowledge the claim of the plaintiff as a subsisting debt due by him, but on the contrary, taken together, amounted to a denial of any existing liability on him to pay; and for a reason, which, if true, furnished a real objection, and sufficient excuse for not paying it. For, if the plaintiff had in his hands securities with which he should and might have covered the amount of his claim, but from negligence or misapplication of the funds did not do so, he should not now look to the defendant for it; nor can he be permitted by evidence of the insufficiency of those securities to convert the defendant’s denial of his liability into an. acknowledgment of a present subsisting debt.
JUDGMENT AFFIRMED.