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Ninth. The acknowledgment need not be made to the plaintiff himself, but may be made to any body else.

Tenth. What kind of promise or acknowledgment is sufficient "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 ac"knowledgment, is proper to be submitted to the jury, as in other "cases, under the direction of the court.

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It has been contended in this case, that where the defendant alleges the debt to have been discharged, and refers to a parti"cular mode of discharge, the plaintiff may entitle himself to re"cover 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 designat"ed 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, after reciting the words of Chief Justice Gibbs, says, "I certainly am not aware of the cases to which my Lord Chief Jus"tice Gibbs refers to support that position." Thus strongly ques"tioning 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 altogether; and that no evidence can be received to "turn a denial of the existence of the debt into an acknowledg"ment 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 proof, and if he chooses to "introduce them, he must be content to take them as they are, "and cannot be permitted to disprove them by other evidence, in "order to raise an implied promise, or to furnish evidence 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 re"gret by the defendant, if they stood alone," that the plaintiff had

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“ been excluded from the deed of trust, and had not been allowed "to come in for his claim," the declarations, always accompany"ing them, "that he did not consider that he was indebted to the "plaintiff, because he had it in bis 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, bu on the contrary, taken together, amounted to a denial of any existing liaIbility 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 liabilityinto an acknowledgment of a present subsisting debt."

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Page 191 note [1] In the case of Stafford vs. Bryan (1 Paige's Rep. 239, 241, 242.) WALWORTH, CH. in pronouncing his Decree, said ; "The only question, therefore, in this cause is, "whether the recovery is barred by the statute of limitations. This "suit was not commenced until nearly eight years after the acknow. "ledgment and promise to Benedict; and although the complainant "commenced two suits in the supreme court in the mean time, one "of which was discontinued, and in the other he was nonsuited "because he could not then prove sufficient to take the case out "of the statute, neither of those suits can avail him any thing "here.

"The defendant is called upon by the complainant to answer "whether he has not admitted his indebtedness, or promised to pay "this demand, within six years previous to the commencement o "this suit. In his answer, the defendant explicitly denies both "and the answer being responsive to the bill, is evidence in hi "favor, and must be considered conclusive, unless disproved by "more than one witness." And after remarking upon the testi mony, the CHANCELLOR added; "There is not, therefore, sufficien "in this case to satisfy me that the defendant has, within six year "before the commencement of this suit, admitted that he owed, a "promised to pay the note in question; and the admission in hi answer of the giving the note, accompanied with the declaratio "of his belief that it had been paid, is certainly not sufficient t "take the case out of the statute of limitations. (Clemenston v "Williams, 8 Cranch 72.)

"The complainant's bill must therefore be dismissed wit "' costs."

CHAPTER 10.

Page 208, note [1.] The Statute of limitations is a good Plea in bar, in equity as well as at law. Stafford vs. Bryan, I Paige's Rep. 239.

The defendant can only avail himself of the Act of Limitations, by pleading; which if he omits to do, it is held to be a waiver of its beneft, 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. Oliver vs. Gray, 1 Harris & Gill's Rp. 215, 216.

Page 218, note [1.] "Where in an action on a promissory note "pavable four months after date, the defendant pleaded non assampsit infra tres annos, to which the plaintiff replied, that "he at the time of making the promise, was beyond seas and "without the jurisdiction of the court, and so remained and con"tinued, &c. and the defendant demurred-Judgment was ren"dered for the plaintiff; for that mode of pleading the act of "limitations in this case, is defective.

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ARCHER, J. in delivering the Opinion of the court, said; "This "mode of pleading the statute of limitations is in many cases not "available; and Williams in his notes to Hodsden vs. Harridge, "2 Saunders, 63, (note 6,) assigns as a reason, that if the cause of "action accrued within six years, it is immaterial when the prom"ise was made, because the statute operates as a bar only from "the time the cause of action arose, and not from the time of "making the promise, the words of the statute being within six "years next after the cause of action accruing,' and not after, and "he puts these cases in illustration of the principle. If a promissory note were made seven years ago to pay money within three years after, the statute is no bar; so if it were made sev"en years ago to pay money within three months after, though the statute would be a bar, yet the defendant must not plead non "assumpsit infra sex annos, for that would be bad; but the plea 'must be causa actionis non accrevit infra sex annos. This last case is precisely the one presented here for our consideration, and must have the same rule applied to it; for the phraseology 'of the English statute, so far as concerns this point, is precisely ' in conformity with our statute of limitations. And it is recom'mended in the note referred to, as the safest and best mode in 'all cases of assumpsit where limitations attach to plead actio non accrevit, &c." Murdock vs. Winter's Admr. 1 Harris & Gill's Rep. 471. 473.

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APPENDIX.

NOTE (A.) pages 385, 386.

In the case of Bagley & Al. vs. Wallace, (In Error,-16 Serg. R. Rep. 245, 250.) the principal questions were, 1st. Whether

a purchase of Lands belonging to the Commonwealth, for which payment was made to, and a conveyance received from the proper officers of the Commonwealth, but the sale whereof was not made in the special mode appointed by Law, would pass the title of the Commonwealth? 2d. Whether a quiet possession for two score years, by honest purchasers, under such a conveyance, would be protected by the Statute of Limitations? The Court below, decided both questions in the affirmative; but ToD, J. delivering the Opinion of the SUPREME COURT, said; "This judgment appears. "to be erroneous. By the attainder of Andrew Allen, his lands, "whether held by legal or equitable rights, were by the law vest"ed in the commonwealth, to be sold by officers specially appoint"ed, and in a special mode, by auction, to the highest bidder; and "the officers appointed to that duty were to be bound by oath, not "to be interested directly or indirectly, or to make any benefit by the forfeited estates. The officers of the land office were bound "by this law, and could not appropriate the forfeited estates, or any part of them, by warrant and survey: nor could they con"firm such appropriation by any act, or by any acquiescence. "Warrant and survey were for vacant lands only. The title of "John Nicholson was null and void, so far as it interfered with the "estate forfeited by Allen.

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"Then does the act of limitations help the case? We think "not. The general rule is admitted, that the commonwealth is 66 not bound by the statute; but it is said there is a distinction, that though the commonwealth is not bound in her sovereign right of original dominion, yet, as to every secondary or deriva"tive right of property, she is bound by the act. This distinction "cannot be admitted. It seems to be unknown to the law, and it "would abolish the implied exception altogether, as far as it re"spects Pennsylvania; for it is supposed, the only title which "the commonwealth can have in lands must be secondary or de"rivative.

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"Admitting the title of the commonwealth, it is argued by the "counsel of the defendant in error, that there exists no real cause "to apprehend disturbance, by or under the commonwealth, to Tiffany's possession. They say, that such a thing never was "heard of in Pennsylvania, and never will be, as an attempt by "the government, to take from honest purchasers their property "and their homes, after a quiet possession of two score years, on "land twice purchased and paid for: first, from the old proprie"taries, and then from the commonwealth, informally, indeed, but "with the full knowledge of all the officers of government. All "this I believe to be true. Indeed, I could almost say, I am sure "it is all true, provided the facts are as stated. Yet, what we are "to decide, is the question of title: and, we are bound to say, that John Nicholson, though a public officer, had no more right than any other person, to take up public lands against the express directions of the law. If any difference, his being comp

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"troller general, makes his title the worse. If innocent persons "suffer, we can only regret that such is the law. It is not for the "court to be generous, and to deal out by anticipation the liberali"ty of the government Several thousand acres are said to be "held in the same manner with the tract in question. Then, pro"bably, it is a subject important enough to attract the notice of "the legislature.'

NOTE (A.) page 371. In the case of Walker & Al. vs. Walker & Al., (16 Serg. & R. Rep. 379, 384.) HUSTON, J. who delivered the Opinion of the Court, said; "The doctrine that the sta"tute of limitations does not apply in cases of trust, has been "much misunderstood. It only applies in cases of express trust, "when the rights of trustee and cestui que trust make but one "title; where there is a confidence, or was a confidence, between "the parties; and even then I will not say it applies where the "trustee openly and distinctly denies the right of cestui que trust, "asserts his claim and title, and holds possession adverse to him "with his knowledge, &c. But it never applied to implied trusts; "to all those cases, where he who has the legal title denies and "disclaims all trusts, claims and acts in all cases and in all re"spects as sole and exclusive owner: much less does it apply to "cases where, along with such occupation and claim, the party "has the legal title of record, and the trust is to be made out by "old hearsays, vague recollections, and forgotten or abandoned "claims."

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