
    Nicholas Buckner v. Wm. Johnson Adm’r. of George Johnson, who sues to the use of &c.
    X. An acknowledgement by B. that he had given the note sued on — had not paid it and did not intend paying it, because it was given for land to which the payee had no title — is not sufficient to take the case out of the statute of limitations.
    2. To take a case out of the stat. lim. there must be either an express promise to pay, or an acknowledgement of a real subsisting debt, on which thelaw wouldraise apromiseto pay a particular sum.
    had given the note sued on — -had not P“en¿ ^ because it was ’ £iv.ei? f°r land t0 not sufficient to tIie case out un"
    To take a case ,°.ut the stat-,' eithei. an express promise to pay, or ment ofareafs^b-sisting debt, on which the law would raise a promise to pay a particular sum.
    
      ERROR to the circuit court of Perry county.
   Tompkins Judge,

delivered the opinion of the court.

Johnson brought his suit in the circuit court against, Buckner, and there had judgment. To reverse this judgment Buckner prosecutes his writ of error. The action was founded on a promissory notedated 10th March 1821, the suit was instituted 29th’July 1833, and the trial took place on thefhst day of October 1834. The defendant pleaded that he did not undertake and promise within ten years next before the commencement of the action. The plaintiff replied that he did undertake and promise since the execution of said note and within ten years next before the commencement of this suit &c., on which replication issue was taken, on the trial of the cause it was proved that about one year before, the note sued on was presented to the defendant for payment, Buckner the note into his hand and said that he gave the note, that he had not paid it, and he did not intend to pay it; the reason was, that he had purchased land of George Johnson, and that he had no title to it; after judgment against the defendant he moved for a now trial because the verdict was against the evidence. We are of ion that the circuit court erred in refusing a' new trial, we incline to think that the statutes of limitations been in former days rendered almost nugatory by the cisions of the courts. The latter decisions are in our opinion much more reasonable and consistent with justice. The legislature of the several states passed such acts to hinder the bringing of actions on stale demands, when all the evidence of payment might have been lost; according to the later decisions, there should be, to take the cause out ot the statute either an express promise to ____ pay a particular sum, or there should be an acknowledgment of a real subsisting debt on which the law would raise a pronlise to pay. This is the conclusion to which the Supreme Court of the United States came in the case of Bell and Morrison. This case is cited from memory and is believed to be in 4th Wheaton.

The judgment of the circuit court is therefore reversed and the cause remanded to be proceeded in conformity to this opinion. 
      
      Wash Judge, being absent.
     