
    Benjamin Rice et a. versus Peter Wilder et a.
    
    An action of debt upon a promissory note is not taken out of the statute of limitations by an acknowledgment made by the defendant within six years, that the debt was honest.
    This was an action of debt upon two promissory notes. The defendants pleaded in bar, among other matters, that the said several supposed causes of an action did not, nor did either of them, accrue to the plaintiffs at any time within six years next before the commencement of this suit.
    To which the plaintiffs replied, that the said several causes of action did accrue to the plaintiffs within six years next before the commencement of this suit, and concluded to the country, upon which issue was joined.
    The cause was tried here at October term, 1827. The two notes, on which the action was founded, were dated the 22d January, 1808, and the one was payable in six and the other in nine months, and this action was commenced on the 1st of June, 1822.:
    To maintain the said issue on their part, the plaintiffs introduced the evidence of one Moses Chapman, who testified that he went with the officer who served the writ in this case, to the house of Peter Wilder, to assist in the service ; that at the time the writ was served, the said Peter was asked, in his presence, whether the debt for which he was sued was honest, or whether he was only a bondsman ; that he answered it was honest ; that he was not a bondsman, but the original demand was for goods.
    Upon this evidence a verdict was taken by consent for the plaintiffs, subject to the opinion of the court upon the question, whether it was in law sufficient to maintain the issue, on the part of the plaintiffs.
    
      J. Parker, for the defendant,
    cited 3 Bing. 329, JP Court v. Cross ; 1 B. & A. 92, Hunt v. Parker ; 20 Johns, 277 ; 5 B. & C. 149 ; 2 Camp. 160 ; 3 B. & A. 626 ; 2 Brod. & B. 372, and ibid, 73 ; 20 Johns. 33.
    
      Cook, for the plaintiffs.
   The opinion of the court was delivered by the

chief justice.

The question in this case, is, whether a promise, within six years before the commencement of the suit, to pay a simple contract debt, will take an action of debt upon such contract out of the statute of limitations? In the case of A'Court v. Cross, 3 Bing. 329, Best, C. J. remarks, “the statute says, that actions on the case, account, trespass, debt, detinue and replevin, shall be brought within six years after the cause of action, and not after. These actions, it will be observed, are mentioned in the same section of the act, and the limitation of the time within which they must be brought is the same in all of them. In all of them except assumpsit, the .six years commence from the moment there is a cause of action, and that timé cannot be enlarged by any acknowledg-merit.” These are the remarks of the present chief justice of the English court of common pleas, and it is believed that no decision, nor even a dictum, to the contrary, is to be found in any book. The propriety of the decisions in which if has been held that an acknowledgment of a debt will take assumpsit out of the statute, is, in the case just mentioned, questioned. And we are inclined to think it very questionable whether those decisions accord with the real intent, object and spirit of the statute. But however that may bfe, wehave no hesitation in holding, that the principle of those decisions, cannot be applied to an action of debt, and that the evidence offered by the plaintiffs, in this case, was altogether insufficient to sustain the verdict. We are therefore of opinion that there must be A new trial granted.  