
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    Aiken v. Benton.
    When it shall appear in evidence, in an action founded on contract, where the issue is upon the revival of the contract, where the act of limitations is pleaded, that the defendant acknowleclge’d, in effect, that the debt, or duty, still subsisted at the time of such acknowledgment, and that has been within four years, it shall revive the obligation, or promise : or the law will from thence raise a new assumpsit, sufficient to satisfy the forms of pleading, so as to save the case from the operation of the act of limitations. And this effect will not be avoided, by any declaration of the defendant at the time of such acknowledgement, expressive of his determinatien not to pay or satisfy the claim.
    Motion from Darlington district, for a new trial. Action of as. sumpsit, tried before Smith, J., for cabinet ware furnished to the defendant, and sent from Philadelphia. Plea, non assumpsit within four years. An acknowledgment of the debt, but a positive refusal to pay, was proved.
    Verdict for the plaintiff.
    Branding, in support of the motion.
    Acknowledgment of the debt still existing, is evidence of a new promise., From such evidence, a promise may be presumed. But when it is accompanied with a declaration, that the party will not pay, it cannot be construed into a promise to pay. What is the issue 1 That the defendant did assume, or promise to pay, within four years. What is the evidence ? That he acknowledged the receipt of the articles charged, but in bad order, and that he would not pay for them. It is immaterial whether the goods were damáged, or not. The question is not, whether the defendant would have been liable to pay if the action had been brought in proper time, but whether this acknowledgment, accompanied with a positive declaration of his intention not to pay, can be considered as any evidence of a promise to pay, so as to entitle the plaintiff to recover, and take the case out of the act of limitations.
    
      Witherspoon, contra.
    
    The presiding judge charged the jury to consider the acknowledgment with all thfe declarations, or circumstances attending it, as evidence of a subsisting debt, or duty, which was sufficient to raise an assumpsit in law, and to take the case out of the limitation act. This charge was correct, and the finding of the jury is legal. The books are silent in regard to the distinction insisted on for the defendant. If the manner of making the acknowledgment, and the circumstances attending it, afford a ground for doubting whether the party intended to acknowledge a subsisting debt, then the presumption of'a-new promise would fail, and the debt would not be revived. But the doctrine to be-collected from all the numerous cases bn the subject, shew clearly, that if the defendant does not deny the duty, but admits that the debt remains unpaid, such admission will revive the debt, and be considered as equivalent to an express promise to pay it. There is no necessity to prove an express promise, or presume an express promise. The promise arises by implication of law, from the justice and equity of the case. The denial of the party to pay, is, therefore, of no consequence. The court will not allow the limitation act to be perverted to the purposes of dishonesty, or to be made a weapon of injustice. The action is founded on the original promise, and not on the acknowledgment of the debt being still due. The effect of acknowledgement is to avoid the operation of the act of limitations in a case not within the mischief intended to be guarded against by it. The law raises the promise so as to satisfy the form of pleading.
   May 6th,

Waties, J.,

delivered the judgment of the court. The rule of law to be drawn from the various decisions on this question, is, that wherever it appears from the acknowledgment, or admission of the debtor, that the debt, or duty demanded, still remains unsatisfied, still subsists; and that there is no other impediment to the recovery of it, but the mere letter of the statute of limitations, there the debt, or duty, is revived by such acknowledgment; i. e. it is relieved from the shackles of the limitation act, and the creditor is not barred from a recovery. The limitation act proceeds upon the presumption, that the debt has been satisfied, from the supine, ness of the creditor for four years after it has become due; and the policy of it is, to prevent the recovery of stale, dormant, and inequitable demands, after a lapse of many years from the time of their origin. Where the reason of the law ceases, there the law ought itself to cease. Where the presumption, or suspicion of payment is removed, and the duty appears still to subsist, the plainest principles of natural justice require that there should be no legal impediment to the exaction of that duty, and that the right t0 enforce the performance of it, should be supported. Upon this Sroun<^ law infers a new promise to pay the debt according to the former promise, which was barred by the operation of the statute of limitations. This implied promise must exist until removed by contrary evidence. It will throw the onus •probandi on the defendant, to prove the debt satisfied. In this case the defendant has not denied the justice of the demand. He has acknowledged it in effect; but he has refused to comply with it. He has refused positively to do that justice which he has acknowledged the plaintiff is entitled to. Will the law sanction this inquity 1 Will it endure it ? Any fiction should be laid hold of, rather than leave such a door open to injustice. To support the action, a promise within four years may well be implied under such circumstances, without resorting to any fiction, or absurdity. The law raises the promise. The party does not deny that, but says, “ I will not pay.” What does this amount to, but to saying, “] promise to pay, in consequence of a former promise made on a good and lawful con. sideration, but I will not pay 1”

New trial refused.  