
    Frances Lee, Administrator of F. Lee, vs. George Perry.
    The following; words were held sulfieient to take a debt out of the statute of limitations, viz: “ that the note had not been paid, and thai he would not pay it, unless compelled by law, as it was om oí dale, and he had received no consideration for it.”
    If the existence of the debt be acknowledged, there is a legal promise to pay, and the debt is not barred by the statute.
    Assumpsit on a note.
    The note sued on in this case, became due on the 1st January, 1821, and the suit was commenced after the 1st of January, IS 1.5. The note was given to Hood, and endorsed in blank, to plaintiff. The pleas were general issue and statute of limitations. To avoid the last pica, the evidence relied on -was, that the note was presented for payment after the 1st January, 1825, when the defendant did not deny his hand writing to the note, but said “ that the note had not been paid, and that he would not pav it, unless compelled by law, as it was out of date, and he had received no consideration for it.” Upon this evidence, his honour who presided, instructed the jury that they must find for the plaintiff, and they did so. The defendant appealed.
    
      Bullard, for the motion, cited State Rep. 484.
    
      J. C. Carter.
    
    The note was transferred before it was due, therefore, the defence is inadmissible.
    J. G. Holmes.
    
    The declaration here made, was tantamount to saying, “I have paid the note, and therefore will plead the statute.” The statute has already been too much avoided; one decision has been made upon another, until the statute is forgotten, and every new case only turns upon some former decision. The statute has been literally abrogated.
   Coecock, J.

It seems to be impossible to lay down any rule on this subject which will be intelligible. In Bnrden & M'Elhenny, 2 N. & M. 60. the opinion commences in these words “ I think it is high time this question was at rest. I lay it down that abare acknowledgement of a subsisting debt, is sufficient to take a case out of the statute of Imitations;” and 1 think the decisions of the court have been uniformly in support of this position. In the case referred to, the authorities are examined and commented on. And in the case of Boyd vs. Carmichael, it is said a “ clear and explicit acknowledgeme t of the debt, will take it from, the operation oj the statute.” (2 JV*. & Jlf’C. 62.)

Now what is the report of the present judge in this case? “ A witness presented the note to the defendant, who said, that the note had not been paid, and that he would not pay it, unless compelled by law, as it was out of date, and he had received no consideration for it.” Now it is impossible bj any other words to convey more distinctly that this was a subsisting debt. This, to be sure, is not a promise to pay; but that is unnecessary, it is so distinctly stated in all the late cases. If the existence of the debt be acknowledged, there i§ a legal promise to pay, and the debt is not barred by the statute.

JBullard and Holmes for the motion.

Carter contra.  