[*188]

*CHAP. IX.

What restores the Remedy.

THE statute does not extinguish the debt, but only bars the remedy [1] it may therefore be revived by a subsequent promise on the part of the defendant; though it was formerly holden, that a promise renewed within six years, if not upon a new consideration, would not bind. (a) But it has since been ruled, that a promise of payment within the six years, though the debt were contracted long before, would deprive the defendant of the benefit of the statute. And at the present day, a promise to pay a preceding debt, barred by the statute, is sufficient

(a) 2 Vent. 152.

[1] It is settled, "That the Statute of Limitations does not destroy the debt:" it only take saway the remedy. (Per LORD MANSFIELD,) Quantock & Al. Assignees, vs. England, 5 Burr. Rep. 2630. Gustin vs. Brattle, Kirby's Rep. 303.

The Statute of Limitations does not annihilate the debt, but suspends the remedy. Lord & Al. Exors. &c. vs. Shaler, 3 Conn. Rep.

131.

The Act of Limitations affects the remedy, and not the right. Jones, Admr. vs. Hooks' Admr. 2 Rand, Rep. 303. Graves vs. Graves' Exor. 2 Bibb's Rep. 207. Commonwealth vs. McGowan, 4 Bibb's Rep. 63.

"The Court are of Opinion, that the act of limitations does not "operate to extinguish the debt, but to bar the remedy." Barney vs. Smith, 4 Harr. & Johns. Rep. 495. (Per CHASE, Ch. J. delivering the Opinion of the Court.)

A war suspends the operation of the Statute of Limitations between the citizens of the two countries, for the time during which

to revive that debt, and no new consideration is necessary.(a)[2]

So, also, is a conditional promise, upon the condition being performed,[3] as, where the plaintiff, as executor, (b) brought an

it continues. Wall ads. Robson, 2 Nott & McC. Rep. 510. Ogden, Admr. &c. vs. Blackledge, Exor. &c. 2 Cranch. Rep. 272. Hopkirk vs. Bell, 3 Cranch's Rep. 454. Same Case, 4 Cranch, Rep. 164. Wilcox & Al. vs. Henry, 1 Dall. Rep. 71. Higginson Survivor, &c. vs. Air & Al., 1 Equ. Rep. (Dessaus.) 427, 430.

[2] An acknowledgment does not revive the old debt, but is evidence only of a new promise, of which the former debt is the consideration. Danforth vs. Culver, 11 Johns. Rep. 146. Jones & Al. Exors. &c. vs. Moore, Admr. &c. 5 Binn. Rep. 573. Gustin vs. Brattle, Kirb. Rep. 303, 304. Pittman vs. Foster and Norris & Ux. 1 Barnew. & Cress. Rep. 248.

A new assumpsit for a store account barred by the six months Act of Limitations [of Virginia, 1779-c.10. Stat. Larg. 381.] binds the debtor. Beall vs. Edmonson, 3 Culls' Rep. 514.

A promissory note does not work a novation of the debt. But it prevents the effect of the prescription of one year. Turpin vs. His Creditors, 9 Mart. Rep. 562.

"The Statute of Limitations is a bar, on the supposition, after a "certain time, that a debt has been paid, and the vouchers lost. "Wherever it appears by the acknowledgment of the party that "it is not paid, that takes the case out of the Statute." Clark, Admr. &c. vs. Hougham, 2 Barnew & Cress. Rep. 149. (Per BAYLEY, J.)

Á bond barred by the Statute of Limitations, and upon which no payment has been made within sixteen years, is not a sufficient consideration to support an action upon an express promise to pay it. Ludlow, Assignee, &c. vs. Van Camp. 2 Halst. Rep. 113.

[3] Vide Heylin vs. Hastings, 12 Mod. Rep. 223.

Where the defendant promised to pay, in certain specific articles, a debt barred by the Statute of Limitations, it was held that the promise was conditional, and that the plaintiff was bound to

action of assumpsit for goods sold by the testator to the defen

shew that he offered, and was ready to accept, the specific articles. Bush vs. Barnard, 8 Johns. Rep. 407.

In the case of Wetzell vs. Bussard, (11 Wheat. Rep. 309. 314,) MARSHALL, Ch. J. in delivering the Opinion of the Court, said; "We "think upon the principles expressed by the Court in the case in

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8 Cranch's Rep. [Clementson vs. Williams, page 72.] that an ac"knowledgment which will revive the original cause of action, "must be unqualified and unconditional, it must show positively "that the debt is due in whole or in part. If it be connected with "circumstances which in any manner affect the claim, or, if it be conditional, it may amount to a new assumpsit for which the old debt is a sufficient consideration; or if it be construed to revive "the original debt, that revival is conditional, and the performance of the condition or a readiness to perform it, must be shewn. In the case at bar, the defendant said to one witness, that if the "plaintiff had come forward and settled certain claims the defend"ant had against him, he would have given him his powder; and "to another he said, he should be ready to deliver the powder "whenever the plaintiff settled a suit which Doctor Ewell had "brought against defendant in the Court of Alexandria, on account "of a patent right and machine sold to him by the plaintiff.'-These "declarations do not amount to an unqualified and unconditional "acknowledgment that the original debt was justly demandable. "They assert a counter claim on the part of the defendant, which "he was determined to oppose to that of the plaintiff. He did "not mean to give validity to the plaintiff's claim, but on condition "that his own should be satisfied. These declarations, therefore, cannot be construed into a revival of the original cause of ac"tion, unless that be done on which the revival was made to de"pend. It may be considered as a new promise, for which the "old debt is a sufficient consideration, and the plaintiff ought to "prove a performance, or a readiness to perform, the condition on "which the promise was made." & vide, Bell vs. Morrison & Al. (1 Peter's Rep. Sup. Ct. U. S. 251, 362.) where the case of Wetzell vs. Bussard, is cited and the doctrine there settled, declared by STORY, J. in delivering the Opinion of the Court, to be, "The "only exposition of the Statute, which is consistent with its true "object and import."

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The words, "if A. will say I have had the timber, I will pay for it," or, prove it by A. and I will pay for it," will not take a case out of the Statute of Limitations, unless the condition be complied with. Robbins vs. Otis, 1 Picker, Rep. 368. Same Case, 3. Picker, Rep. 4.

dant, the defendant pleaded the statute of limitations; and in evidence it appeared, that the goods were sold six years before the action was brought; but that the defendant said to the plaintiff, when he demanded the money, "Prove it, and I will pay you" for that was a new promise, and should charge the defendant notwithstanding the statute of limitations ;

for it *was as much as to say, if the goods were sold [*189 ] to the defendant, he promised to pay for them.

In the case of a promise by the defendant(a) to pay a preceding debt when he should be able, it is incumbent on the plaintiff to show that the defendant was of ability to pay at the time of action brought.[1]

(a) 3 Esp. 159.

Where the maker of a promissory note denied his signature, declaring the note to be a forgery; but said that if it could be proved that he signed the note, he would pay it; and it was proved at the trial that he did sign it; this was held sufficient to take the case out of the Statute of Limitations. Seaward vs. Lord, 1 Greenl. Rep. 163.

The defendant was sued upon a note of hand and pleaded the Statute of Limitations. It was proved that he made the note, and that the same had been presented to him within six years, when he said, "That he did not recollect giving the note, but if he did, "he would pay it, its being outlawed should make no odds:" this was held sufficient to take the case out of the statute. Stanton vs. Stanton, 1 New Hamp. Rep. (R. & W.) 425.

[1] Where to a demand of a debt of above six years standing, the party says, "I think I am bonnd in honour to pay the money, "and shall do it when I am able," it was Held, "That it was a con"ditional promise only; and that the plaintiff was bound to show, "that the defendant was then of sufficient ability to pay." Davies vs. Smith, 4 Esp. Rep. 36.

In assumpsit brought to recover a sum of money, the defendant pleaded the Statute of Limitations, and upon that issue was joined. At the trial the plaintiff proved the following acknowledg. ment by the defendant within six years: "I cannot pay the debt at present, but I will pay it as soon as I can." Held, that this was

But a promise to pay an executor cannot be given in evidence upon the issue of assumpsit infra sex annos to the executor's testator.[2]

not sufficient to entitle the plaintiff to a verdict, no proof being given of the defendant's ability to pay. Tanner vs. Smart, 6 Barnew. & Cress. Rep. 603.

To a plea of the Statute of Limitations the plaintiff replied a promise within six years, and proved that three years after the original cause of action accrued, and within six years of the commencement of the action, the defendant being called on for payment of the plaintiff's demand, said, "It was not in his power to pay, "but as soon as it was, he would." Held, that the plaintiff must also prove the defendant's ability to pay. Scales vs. Jacob, 3 Bingh. Rep. 638.

In an action on an attorney's bill to which the defendant pleaded the Statute of Limitations, the plaintiff proved that the defendant having been applied to for payment, within six years before the commencement of the suit, said, "He should be happy to pay the debt if he could," and added, that if the plaintiff could recover for him, a debt due to him from one Gurney, the plaintiff might therewith satisfy his own debt; Held, that the plaintiff must shew the defendant's ability to pay. Ayton vs. Bolts, 4Bingh. Rep. 105. (Easter Term, 1827.)

But in the case of Thompson vs. Osborne, (2 Starkie's Rep. 98.) it was held by Lord ELLENBOROUGH, at nisi prius, (in 1817,) that, a promise by a defendant to pay a debt by instalments when he is able, is sufficient to take a case out of the Statute of Limitations without proof of time being given, or of the ability of the party.

[2] An acknowledgment of a subsisting debt made within six years before action brought, to the executors of the creditor, will not where the issue is upon the Statute of Limitations, support a declaration upon a promise to the testator himself. There should be a special Count. Jones & Al. Exors. &c. vs. Moore, Admr. &c. 5 Binn. Rep. 573. Short vs. McCarthy, 3 Barnew. & Ald. Rep. 631. (Per BAYLEY, J.) & vide May's Exor. vs. Cowman's Exor. 3 Har. McHen. Rep. 152, 153.

CONTRA, Baxter, Admr. vs. Penniman, 8 Mass. Rep. 133.

A statement by a debtor made to an exector, that the Testator had always promised never to distress the defendant for a debt, is not evidence to prove a promise to pay, made to the testator within six years; the Court said, "When the courts determine that an