the subject of the arrest, that the plaintiff had paid mo

Held, that an acknowledgment of the debt does not revive the action, and thereby save a bond out of the Statute. (September Term, 1787.)

But in the case of Gates vs. Brattle, Admr. of Brattle, (In Error, 1 Root's Rep. 187.) where the plaintiff In Error, had together with one Gustin executed a bond to the intestate, which became due more than twenty-six years before suit brought; but Gustin bad within twenty-two years paid the interest on the bond, and, also endorsed on the bond a statement of the amount at that time due thereon; and the plaintiff within thirteen years thereafter, viz. on the 12th April, 1776, went from Boston over sea to Halifax, and there resided until the 20th of October following, when he died, and there was no administration taken on his estate, or any person capable of bringing a suit on said bond, until the 9th October, 1784, when the plaintiff took administration on the intestate's estate, and brought said suit within four years thereafter; it was held, that the plaintiff was entitled to recover notwithstanding the plea of the Statute of Limitations. (March Term, 1790.)

The Act of 1792 [of Virginia, Rev. Code, Vol. 1. p. 167. Sect. 56.] which makes it the duty of the Court" in an action upon an open account against an executor or administrator, to cause to be expunged from such account all items appearing to have been due five years before the death of the testator or intestate," applies to open accounts existing before the 1st day of October, 1793, when it took effect. (See Rev. Code, Vol. 1. p. 293. c. 150.) But it relates only to open accounts, and does not extend to settlements or assumptions; therefore, the plaintiff, to take his case out of the Act, may give in evidence an assumpsit of the testator or intestate, within five years, to pay a stated balance. Brooke's Admrs. vs. Shelly, 4 Hen. & Munf. Rep. 266.

A person borrowed a sum of money in the year 1807. In the year 1815, he stated, by parol, to the attorney of the party entitled to it, that he had made provision by his will, and had directed his executors to pay it at his death. He died in the year 1825, without having made any such provision. Held, in an action against the executor, that the promise was good, and the money recoverable; that neither the Statute of Frauds, nor the Statute of Limitations applied to the case; and that a moral obligation to pay was a sufficient consideration for the promise. Wells vs. Horton, Exor. &c. 2 Carr. & P. Rep. 383.

A. by means of a misrepresentation, received of B. and several other persons, his, (A.'s) tenants, various sums of money, to which

ney for him twelve or thirteen years before, but that he had

he was not entitled. B. applied to him to have the money which he had so paid returned, saying that he and the other tenants had been induced to pay more than was due. A. replied, that if there were any mistake it should be rectified: Held, that this obviated the Statute of Limitations as to payments made by the other tenants as well as by B.-Plaintiff, as Administratrix of one of the other tenants, after the death of her intestate, made one such wrongful payment as before mentioned out of the assets: Held, that she might recover it in her representative character. Clark, Admx. &c. vs. Hougham, 2 Barnew. & Cress. Rep. 149.

If a party, when he is arrested, say, "I shall go to my attorney's and pay the debt, and settle it," such statement is sufficient to take the case out of the Statute of Limitations. Triggs, Admr. vs. Newnham, 1 Carr. & P.'s Rep. 631.

In an action on a promissory note, the defendant having pleaded the Statute of Limitations, the plaintiff gave in evidence, as proof of an acknowledgment within six years, the following letter from the defendant to the plaintiff: "Business calls me to Liverpool. Should I be 'fortunate in my adventures, you may depend upon seeing me in Bristol; otherwise, I must arrange matters with you as circumstances will permit." The defendant did not show that there were any other matters besides the promissory note to which the letter could refer Held, that it was properly left to the jury to decide whether this letter referred to the matter of the promissory note, and was a sufficient acknowledgment to take the case out of the Statute. Frost vs. Bengough, 1 Bingh, Rep. 266. Sed vide, Tanner vs. Smart, 6 Barnew. & Cress. Rep. 603. (Cited, post, page 191. n. [1].)

In the case of College vs. Horn. (3 Bingh. Rep. 119.) the following letter from the defendant to plaintiff's attorney was given in evidence by the plaintiff in answer to a plea of the Statute of Limitations:-"I have received your's respecting Mr. Thomas "Colledge's demand; it is not a just one. I am ready to settle "the account whenever Mr. T. C. thinks proper to meet on the "business. I am not in his debt 907. nor any thing like that sum: "shall be happy to settle the difference, by his meeting me in Lon"don, or at my house." Held, that the judge was justified in di"recting the jury, "that after this letter the Statute of Limita"tions was out of the question."

Plea of the Statute of Limitations to a bill of discovery, overruled; upon letters from the defendant to the plaintiff, assigning reasons for declining to pay, and recommending the plaintiff to

since become a bankrupt, by which he was discharged, as well

bring an action; which were considered as amounting to an acknowledgment of the debt sufficient to take the case out of the Statute, upon the authorities, though against principle. Baillie vs. Sibbald, 15 Ves. Rep. 185.

The case of Dowthwaite vs. Tibbut, (5 Maule & Sel. 75.) was an action of assumpsit, to which the Statute of Limitations was pleaded. The plaintiff served as mate on a voyage to and from Russia in 1800, and the demand was for wages for that service, which took place during the Russian embargo. The witness who proved the making a demand of payment on the defendant, proved also that the defendant answered to such demand, "I will not "pay; there are none paid, and I do not mean to pay unless obliged, you may go and try." This was held sufficient to take the case out of the Statute of Limitations. Sed Vide Tanner vs. Smart, 6 Barnew. & Cress. Rep. 603. (Cited, post, page 191. n. [1.]-)

In assumpsit against the defendant as acceptor of a bill of Exchange, and upon an account stated, evidence that the defendant acknowledged his acceptance, and that he had been liable, but said that he was not liable then because it was out of date, and that he could not pay it, it was not in his power to pay it, was held sufficient to take the case out of the Statute, upon a plea of Actio non accrevit infra sex annos. Leaper vs. Tatton, 16 East Rep. 420. Sed vide Tanner vs. Smart, 6 Barnew. & Cress. Rep. 603. CONTRA, (cited, post, page 191. n. [1.]—).

In the case of Peters vs. Brown (4 Esp. Rep. [Ni. Pri.] 46,) the plaintiff to prove au acknowledgment of the debt by the defendant, within six years, called a witness, to whom the defendant was also indebted, and who having called on him for money, the defendant said, "I suppose you want money; but I can't pay you; "I must pay Mr. Peters (the plaintiff) first, and then I'll pay you." Held, a sufficient acknowledgment, to take the case out of the statute, notwithstanding it was not made to the party himself.

If a defendant admits a debt which would otherwise be barred by the Statute of Limitations, but claims to be discharged by à written instrument, but which being referred to, does not amount to a legal discharge, he shall be bound by the admission, and the case be thereby taken out of the Statute of Limitations. Partington vs. Butcher, 6 Esp. Rep. 66.

In assumpsit for work and labour, the Act of Limitations was pleaded. Held that evidence of an acknowledgment by the de.

as by law, from the length of time since the debt had accrued.

fendant that the Plaintiff had performed work for him, but that he had an account in bar, and when a person who was then up the bay should come to town he would have the business settled, was sufficient to defeat the operation of the Act of Limitations. Poc vs. Conway's Adm'r. 2 Har. & Johns. Rep. 307.

In an action against a husband for goods supplied to his wife for her accommodation while he occasionally visited her, a letter written by the wife acknowledging the debt within six years, is admissible evidence to take the case out of the Statute of Limitations. Gregory vs. Parker, 1 Camp. Ni. Pri. Rep. 394.

In an action against A., on the joint and several promissory note of himself and B., it is enough, to give in evidence, to take the case out of the Statute of Limitations, a letter written by A. to B., within the six years, desiring him to settle the plaintiff's money. Halliday vs. Ward, 3 Campb. Ni. Pri. Rep. 32.

These words," After payment of all my just debts, then I give," &c. Held sufficient to take a debt out of the Statute of Limitations. Anonymous, 1 Hayw. Rep. 243.

In the case of Lansdale's Ex'x. vs. Ghequiere, On Appeal. 4 Har. & Johns Rep. 257, 259,) the will mentioned in the complainant's bill, began, "When all my just debts and funeral expenses "are paid, I devise and bequeath as follow," &c. and then proceeded to dispose of the testator's estate. The bill which was against the Executrix, and heirs, and representatives of T. Lansdale, and some others, alleged that W. M. Lansdale was the agent of the Executrix in settling the estate of the testator, and that he, W. M. L., frequently and fully, within two years before the filing of the bill, admitted the claim, and promised adjustment and settlement, and gave an order on B. and C. for a part of it. Some of the defendants appeared and answered the bill. They did not deny or confess the allegations in the bill, but professed ignorance, and left the complainants to establish their case by proof. The answer of W. M. Lansdale, which by consent was also to be taken as the answer of the Executrix and of P. Lansdale, [another of the representatives of the testator,] concluded thus: "He therefore relies on length of time as a bar to any relief "which the complainants might otherwise have had, and claims "the benefit thereof at the trial." Against three of the defendants who did not appear, the bill was taken pro confesso. The allegations of the bill were fully supported by the proof taken under the commission in the cause. One witness proved that W. M. Lansdale, as the agent of his mother, [the Executrix,] fre

It was contended, that this evidence was not sufficient to charge the defendant; that it was against the sense and spirit of the statute that it should be so; that the plea of the statute of limitations itself admitted the existence of the debt, but claimed a discharge by reason of the statute; and that it would be depriving the party of the protection of the statute, if the claim of that protection should be construed into an admission of the debt, and be sufficient to charge him.

Lord Kenyon said, he was not now to put a construction on the statute of limitations for the first time. It had been decided,

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quently promised the witness as the complainant's counsel, to settle the claim, and that the only difficulty was to ascertain the balance due. KILTY, CHANCELLOR, in pronouncing his decree, said; "As to the plea of Limitations or the insisting on it in the answer, "it is to be observed, that at law the least acknowledgment takes "the demand out of the Statute or Act, and by a parity of reason"ing there seems to be a sufficient acknowledgment in the answer "to have that effect. The trust created by the will is also relied on. Notwithstanding the reversal of the decree in the case of Blakeway vs. The Earl of Stafford, 2 P.Wms. 273, the chan"cellor is of opinion that the doctrine recognized in Precedents "in Chancery, and other authorities, as to the trust created by a charge on the estate for payment of debts, and there being thereby taken out of the Statute of Limitations, is not overruled "or changed. That such charge may be made without express "words, as in the case of King vs. King & Ennis, 3 P. Wms. "358, in which the devise was that after the testator's debts "paid, the rest and residue of his real and personal estate should go to his son; and that although the cases generally speak of "charges on the real estate, a devise of the personal estate, ei"ther express or implied, would have the same effect; and would "not be merely void, as suggested in the note in the case of "Jones vs. Strafford, 3 P. Wms. 89, but would form rather a "stronger ground." This cause was carried by the defendant to the COURT OF APPEALS; but the decree of the Chancellor in favour of the complainants, was there affirmed. Sed Vide the cases of Smith vs. Porter & Al. Exors., 1 Binney's Rep. 209. Roosevelt vs. Marks, 6 Johns. Ch. Rep. 266. 295, 296. Campbell's Executors vs. Sullivan, Hardin's Rep. 17. Dewdney ex parte & Seaman ex parte, 15 Ves. Rep. 488, 497. Roffe ex parte, 19 Ves. Rep. 470. Walker's Exors. vs. Campbell's Exor. &c. & Al. 1 Hawk's Rep. 304. Brown's Admr. vs. Griffith, 6 Munf. Rep. 450. Burke vs. Jones, 2 Ves. & Beame's Rep. 275. 280. CONTRA. (These cases are all cited in note [1,] page 191.)