
    Jambs M. Lowry v. Henry Dubose.
    A promise not to plead the statute of limitations, made after the debt was actually barred, is sufficient to lake the case out of the statute, although ¡indicate an intention to resist payment on other grounds; and may, it seems, be given in evidence in an action for the original debt, under a general replication that the action did accrue within four years.
    Tried before Mr. Justice Gantt, at Sumter, Spring Term, 1831.
    Assumpsit. The declaration contained a single count upon a promissory note payable 1st January, 1822. The defendant pleaded actio non accrevit infia quatuor annos; to which the plaintiff replied, that the action did accrue within four years, and issue was taken thereon.
    To support the replication, the plaintiff offered in evidence the following indorsement on the note. “ This note was given in .swap of horses, (which if admitted,) though out of date, and sué(j jn gumter district, shall never he plead in Court, as I take no advantage of the act of limitations. 20th February, 1826. H. Dubose.” The admissibility of this indorsement was objected to, and the objection was sustained by the Court. His Honor said, that under the recent decisions of the Court of Appeals, a debt already barred by the statute of limitations could not be revived but by an express promise to pay, or a distinct admission of the debt. The indorsement of defendant was neither the one,-nor the other. There was an admission, it is true, but it was on a condition, which showed that the defendant neither acknowledged the debt, nor meant to pay it, but to resist payment. Moreover, the promise was illegal. A contract that a man will not avail himself of a legal defence, is against law, and void.
    The plaintiff suffered a nonsuit, with leave to move to set it aside; and now moved accordingly, on the ground, that the evidence offered should have been received.
    Williams, and Blanding, for the motion.
   O’NeXll, J.

delivered the opinion of the Court.

The rule, as to the operation of the statute of limitations has been repeatedly laid down since the case of Young v. Monpoey, decided at Charleston. It was repeated at this term in the case: of Trammell v. Salmon. “ Where the statute has run out, there must be an express promise to pay, or an unqualified and direct admission of a subsisting debt, which the party is willing and liable to pay.” supra, pp. 278, 308.

In this case, the only question is, whether the written promise is within the rule, either “ an express promise to pay, or an unqualified and direct admission of a subsisting debt.” I am satisfied that it is both. It is true, it is not in so many words a promise to pay, but yet in effect it is the undertaking of the party to pay, notwithstanding the statute of limitations, if he should have no other meritorious defence. It is an admission of a subsisting debt; for it speaks of it as a note made by the party, not yet satisfied: it is a debt which the party admits he is willing tmd liable to pay, if he should have no other defence than the statute of limitations. An express promise not to plead the statute of limitations, is in every sense of the word as much an admission of a subsisting debt, which the party is willing and liable to pay, as if he had given a new note for the same sum of money, reserving any other defence which he might have had to the first note.

A promise not to plead the statute of limitations, is not contrary to law. The statute is predicated upon the presumption of payment: the lapse- of time which constitutes its bar, stands in the place of the proof of payment. It is the defence of the party, which he may elect to set up or not, as he may think proper. A promise not to plead the statute of limitations is no violation of even the act itself. It is merely the declaration of the party that it has no application to his case.

The motion to set aside the nonsuit, and for a new trial, is therefore granted.  