
    *Butcher v. Hixton.
    May, 1833.
    Debt on Note — Statute of Limitations — Subsequent Acknowledgment. — In debt upon a promissory note against H and B. — H. being the principal debtor and B. the surety, and the declaration counting on the note alone,- -B. pleads severally, the statute of limitations, the plaintiff replies generally, and issue: Knim. that proof of an acknowledgment of the debt by H. the principal, within five years next before the action brought, does not sustain this issue on the plaintiff's part.
    Same— Same — Same—Declaration.—if in any case of an action of debt on simple contract, the plaintiff ■would rely on a subsequent acknowledgment, to take the case out of the statute of limitations, it seems, he must count on such subsequent acknowledgment in his declaration; otherwise, in an action of assumpsit.
    Debt on a promissory note of one Hart and the appellant Butcher to Hixton, brought in May 1826, by Hixton against the makers, in the county court of Randolph. The declaration was in the usual form, alleging the execution of the note by the defendánts, and the failure and refusal of both and each to pay the money. The defendants pleaded payment, jointly; and Butcher, severally, pleaded the statute of limitations. The plaintiff replied generally to both pleas, and thereupon issues were made up.
    The evidence at the trial, was, 1. the promissory note on which the action was founded; which was a note of Hart and Butcher to Hixton, -dated the 26th October 1819, for 126 dollars payable the ISth September 1820, with credit indorsed on it for four dollars paid on the 22nd August 1822; and 2. proof that Hart, within the five years next before the action brought, acknowledged that the debt mentioned in the note was unpaid and justly due; that Hart, however, was now insolvent, though he was solvent at the time the note fell due; and that Hart was the principal debtor, and Butcher was only his surety. And this being all the evidence, Butcher demurred thereto, as not sufficient to maintain the action against him; and the plaintiff joined in the demurrer.
    There was a- verdict for the plaintiff, subject to the opinion of the court on the demurrer to evidence. The county court held that the law on the demurrer was for the plaintiff, and gave him judgment against both defendants. Butcher ^appealed to the circuit court, which affirmed the judgment; and then he appealed to this court.
    Johnson, for the appellant.
    Robinson, for the appellee.
    
      
      Debt on Note — Statute of Limitations — Subsequent Acknowledgment — Declaration.—To the point that
      
        In an action of debt on a promissory note, the case will not be taken out of the statute of limitations by proof of the new promise unless there is a general indebitatus count in the declaration, the principal case is cited in Bell v. Crawford, 8 Gratt. 122; Farmers Bank v. Clarke, 4 Leigh 609. In this last case, Tucker, P., said that the principal case was not conceived to go farther than to establish the necessity of bringing assumpsit, or adding a counton indebitatus assumpsit to the declaration in debt, where reliance is to be placed upon an acknowledgment or promise to avoid the bar of-the statute of limitations.
      Brooke, J., in Farmers Bank v. Clarke, 4 Leigh 608, 609, said that he concurred in the opinions of the president and Judge Carr in the principal case, solely on the ground, that the acknowledgment of Hart, the principal in the note, could not be considered as a waiver of the statute of limitations by Butcher, the surety, and that he did not think it material to decide any other point made in the argument; that the acknowledgment in the principal case, being defective in two respects, as a waiver of the statute, it was unnecessary to decide the question, whether it was within the issue in that case.
      Judge Carr, in his opinion in Farmers Bank v. Clarke, 4 Leigh 607, said: “It is not necessary to examine the more general proposition discussed in the argument, whether in debt on a promissory note, any subsequent acknowledgment can be resorted to, to take the case out of the statute. However, as the case of Butcher v. Hixton (ante, 519), in which that point was decided, has excited some remark, I shall barely say. that the case was very ably argued; that for myself, I examined itvery laboriously; and that on are-examination, I continue to think the opinion there given correct, whether we take it upon the pleadings, upon the plain meaning of the statutes, upon principle, or upon authority.”
      See monographic note on “Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
      Statute of Limitations — Subsequent Acknowledgment — Sufficiency.—The subsequent promise or acknowledgment. to take a case out of the statute of limitations, ought to be such a one as if declared upon would support an action of itself; that is, it must be an express promise to pay, or such an acknowledgment of a balance then due, unaccompanied by reservations or conditions, as that a jury ought to infer from it a promise to pay. As recognizing this doctrine, cases of Butcher v. Hixton. 4 Leigh 519, and Farmers’ Bank v. Clarke, 4 Leigh 603, were cited in Aylett v. Robinson, 9 Leigh 45. See also, foot-note to this case.
      And in Dinguid v. Schoolfield, 32 Gratt. 808, Judge Burks, who delivered the opinion of the court, said: "If an acknowledgment is relied on, says Judge Parker, it ought to be a direct and unqualified admission of a present subsisting debt, from which a promise to pay would naturally and irresistibly be implied. Sutton v. Burruss, 9 Leigh 381. If there be an unequivocal admission that the debt is still due and unpaid, unaccompanied by any expression, declaration or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise is then present, and the party is bound by it. Johnson, J., in Young v. Monpoey, 2 Bailey (So. Car.) 278. It is needless to multiply authorities for the proposition stated, but the following may be consulted: Bangs v. Hall, 2 Pick. R. 368: Baily v. Crare, 21 Pick. R. 323; Russell v. Copp, 5 N. Hamp. R. 154; Head’s Ex'x v. Warner’s Adm’rs, 5 J. J. Marshall R. 255: Peebles v. Mason, 2 Dev. R. 367; Aylett’s Ex’or v. Robinson, 9 Leigh 45; Sutton v. Burruss, 9 Leigh 381; Butcher v. Hixton, 4 Leigh 559; opinion of Moncure, j., in Bell v. Crawford, 8 Gratt. 110.”
      For further information, see foot-note to Sutton v. Burruss, 9 Leigh 381, and other notes there cited; monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
      Same — Same—Action on Old Contract. — In Bowles v. Elmore, 7 Gratt. 391, Judge Moncure, delivering the opinion of the court, said that it had long been a vexed question, whether, where a new promise is. m ade to pay a debt barred by the act of limi tations, the action might be brought on the old contract. The judge then cites the principal case, and Farmers Bank v. Clarke, 4 Leigh 603, and says that two of the judges in these cases contended that the action should be brought on the new contract; but that the question was not decided in these cases and had never been decided in Virginia. In this case. Judge Moncure left the question till unsettled as it did not affect the case at bar. See the principal case also cited on this point in Bell v. Crawford, 8 Gratt. 123; Horner v. Speed, 2 Pat. & H. 621. In the first of these two cases, it was said that the proviso in the statute of limitations of April 1838. was produced by the opinions expressed by some of the judges in the principal case and Farmers Bank v. Clarke, 4 Leigh 603.
      For further information, see monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
   CARR, J.

The question is whether the evidence supports the replication of the plaintiff to the plea of the statute of limitations? To my understanding it is clear, that it does not; and this, whether we look at the point in issue upon the pleadings, or the plain words and clear meaning of the statute. This is not an action of assumpsit, but debt: there are no money counts in the declaration ; no count of insimul compu-tassent. The single point is, whether the cause of action accrued within five years; and the single cause of action counted on, is the note. Now, how is this point supported by the evidence demurred to? Hirst, there is the promissory note; which, so far from proving that the cause 'of action accrued within the five years next before the commencement of the suit, proves exactly the reverse. The next evidence is the indorsement on the note. I do not mean to say that this, standing alone, is proof of any things but taking it as proof of a partial payment, it is relied on to shew an admission, that, at its date, the note was unpaid; and this it does shew; and the plaintiff has also expressly proved, that the defendant Hart, within the five years, admitted that the debt was just and unpaid. But does this support the issue? ¡does it shew that the cause of action accrued within the five years? Assuredly not, unless we can say, that this acknowledgment of the debt does not operate as a new promise, but draws down the original promise to the time of the acknowledgment; and this it is impossible to say, in this action of debt, founded on the promissory note alone. Indeed, there are many cases, in the english books, to shew, that in actions of assump-sit, the subsequent acknowledgment must be taken as a new substantive promise; and this (when I come to cite these cases more particularly) *w'ill shew the distinction in this respect between debt and assumpsit. What says the statute of limitations on this subject? All actions upon the case (other than slander) and all actions of debt grounded on any lending or contract without specialty, shall be commenced and sued within five years next after the cause of such action, or suit, and not after. This statute is taken from that of the 21 Jac. 1, ch. 16, only substituting five years for six. It would seem to me difficult for the legislature to have selected terms more clear and unambiguous, than those used in this law; and yet we shall see, that by the course of judicial legislation pursued by the english courts, they have made them to mean, sometimes one thing, sometimes another, and sometimes nothing at all. Happily', the more recent decisions, are bringing the subject back to the plain common sense of the statute; at least, the judges seem disposed to come as near to it, as the trammels of inveterate practice afad precedent, will permit them. With us, there are no such trammels; for I believe this is the first time, that the point now in discussion, has come directly before this court.

I do not know, that I can so well state the course of decision on this subject, as by quotations from some of the able judges who have presided in the english courts, within the last fifteen or twenty years. In A’Court v. Cross, 3 Bing. 329, 11 Eng. C. L. R. 124, chief justice Best says, “I am sorry to be obliged to admit, that the courts of justice, have been deservedly censured for their vacillating decisions on the 21 Jac. 1, ch. 16. When by distinctions and refinements, which, as lord Mansfield says, the common sense of mankind cannot keep pace with, any branch of the law is brought into a state of uncertainty, the evil is only to be remedied by going back to the statute; or if it be in the common law, settling it on some broad and intelligible principle. — 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 these except assumpsit, the six years commences from the moment there is a cause of action, and that time cannot be enlarged by any acknowledgment. But in assumpsit, it has been hol-den, that although six years have elapsed since the debt was contracted, if the debtor promises to pay it within six years, he cannot avail himself of this statute, because this promise, founded on a moral consideration, is a new cause of action. It seems to me, the plaintiff should have been required to declare specially, on this new promise, and ought not to have been permitted to revive his original cause of action, for which the statute expressly declares no action shall be brought. By the present practice, the defendant has not such distinct information as, I think, he is entitled to, that the plaintiff means to avail himself of some promise, to recover a stale demand. The real cause of action is kept intirely out of view, and one that cannot be supported is brought forward. This is inconsistent with what is said to be the intent of special pleadings. The courts however have not stopt here; they have said, acknowledgment of a debt is sufficient, without any promise to pay it, to take the case out of the statute, I cannot reconcile this doctrine either with the words of the statute, or the language of the pleadings. The replication to the plea of non assumpsit infra sex annos, is, that the defendant did undertake and promise within six years. The mere acknowledgment is not a promise to pay it. It has been supposed, that the legislature only meant to protect persons who had paid their debts, but from length of time had lost or destroyed the proofs of payment. Erom the title of the act to the last section, every word of it shews, that it was not passed on this narrow ground. It is, as I have often heard it called by great judges, an act of peace. Long dormant claims, have often more of cruelty than of justice in them. The legislature thought, that if a demand was not attempted to be enforced within six 3rears, some good excuse for the non-payment *might be presumed, and took away the legal power of recovering it.” Again, in Scales v. Jacob, 3 Bing. 638, 13 Eng. C. L. R. 85, the same distinguished judge makes the following sound and excellent remarks: “The two best statutes in our books are, the statute of frauds and the statute of limitations; but, unfortunately, the judges in Westminster hall, have taken a different view of the subject; and, until recently, a struggle seems to have been made to avoid the effect of those statutes. It is curious to observe the progress of opinion on this subject. At first, it seems, the judges were with the statute, and in Dixon v. Thompson, 2 Show. 126, Scroggs, J., and the bar on both sides were agreed, that there must be an express promise to take the case out of it. The same point was ruled, in Bass v. Smith, 12 Vin. Abr. 229, and in Lacon v. Briggs, 3 Atk. 105, it was still held, there must be a promise, although the -court considered it somewhat hard. Then, in Hyleing v. Hastings [1 Ld. Raym. 389; Com. Rep. 54], by the opinions of ten1 judges, after much consultation, it was determined that an acknowledgment of the debt, was at the utmost only evidence from which a promise to pay might be inferred by a jury; but that if a jury found only the bare acknowledgment, it would not be sufficient. After this, equity lawyers came into the courts of common law. Lord Mansfield brought with him into those courts, equitable notions of the statute of limitations; and held that a bare acknowledgment of the debt, even after action brought, would be sufficient to support the action, although not commenced till after the expiration of six years. Lord Lough-borough entertained the same opinion. The court of king’s bench adhered to it, till ultimatelj' the principle was carried to such a degree of absurdity, that a declaration of a defendant that he would not pay (Dowthwaite v. Tibbut, 5 Mau. & Sel. 75), was holden a sufficient acknowledgment to take the case out of the statute.” The judge then states the case of Hellings v. Shaw, 5 Taunt. 608, where the court of common pleas (Gibbs, C. J.) came to a different decision; and refers to, *and approves of all he had himself said in A’Court v. Cross. He then says, “Having disposed of the cases, I come next to the statute. If the language of that is clear, we are especially bound to adhere to it, where there is a conflict among the decisions; and the language of this statute is so clear, that if it were not for the decisions, a doubt would hardly be raised upon it. It has been argued, that the object of the statute was to protect those who’ had lost the evidences of their payments. This I deny. The title of the act is proof to the contrary; An act, for limitation of actions, and for avoiding suits in law, and the preamble is, For quieting men’s estates, and avoiding suits.” (See 3 Hen. Stat. at Large 381, our statute of 1705, 4th year of Queen Anne, with a like title, An act for limitation of actions, and avoiding of suits, and the preamble, For avoiding of law suits. And in the revisal of 1748, there is the same title and preamble, 5 Id. 513.) The judge proceeds: “After appointing various periods of limitations for other actions, the act provides, that all actions on the case, other than for slander, shall be commenced and sued within six years next after the cause of such actions, and not after. But it has been argued, that by an acknowledgment after the six years, a new cause of action is created, from which a promise may be implied. Yet in eject-ments and the other forms, of action, besides assumpsit, enumerated in the statute, no acknowledgment after the allotted time will create a new cause of action, although the statute was passed on the same principles with respect to those actions as with respect to assumpsit. It is not a statute to protect parties against loss of evidence, to quiet claims.”

There are many cases going to shew, that the old doctrine, that the acknowledgment of a debt was a continuation of the original promise, is exploded. Hurst v. Parker, 1 Barn. & Ald. 92; Green v. Crane, 2 Ld. Raym. 1101; Sarell v. Wine, 3 East 409; Ward v. Hunter, 6 Taunt. 210; 1 Eng. C. L. R. 359; Pittam v. Foster, 1 Barn. & Cress. 248 ; 8 Eng. C. L. R. 67. In this last case, chief x"justice Abbott said, “The question is, whether an acknowledgment within six years operates as a new substantive promise, or draws down the original promise to the time when the acknowledgment is made? In Hurst v. Parker, lord Ellenborough says, that in assumpsit, an acknowledgment of the debt is evidence of a fresh promise. If that be not so, but on the contrary the acknowledgment is to have the effect of drawing down the original promise, then in an action by an executor, upon promises made to the testator, evidence of a promise made to the executor wpuld support the issue; but the reverse was decided in Green v. Crane.” And he added, that Ward v. Hunter (to the same effect) “was determined at a time when lord chief justice Gibbs presided in the common pleas, than whom, no judge was ever more perfect^ acquainted with the rules of pleading.”

In Bell v. Morrison, 1 Peters 371, judge Story delivering the opinion of the court, and speaking of the power of a partner, after dissolution, to bind the firm by the acknowledgment of a prior debt, says, “We think the proper resolution of this point, depends upon another, that is whether the acknowledgment or promise is to be deemed a mere continuation of the original promise, or a new contract springing out of and supported by the original consideration? And we think it is the latter, both upon principle and authority.”

I must add one more to this list of cases: Tanner v. Smart, 6 Barn. & Cress. 603, 13 Eng. C. L. R. 273, decided by the court of king’s bench in 1826. The opinion is delivered by lord Tenterden, and I shall continue to quote his words, becase I think it the fairest and most impressive manner of stating the authority. He says, “The action was in assumpsit. Issue was joined upon the statute, and the acknowledgment proved was, I cannot pay the debt at present,, but I will pay it as soon as I can. The point, therefore is, whether this is such an acknowledgment as, without proof of any ability on the part of the defendant, takes the case out of the statute? There are, undoubtedly, Authorities that the statute is founded on the presumption of payment; that whatever repels that presumption, is an answer to the statute, and that any acknowledgment which repels the presumption is, in legal effect, a promise to pay the debt; and that though such acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the condition or refusal void, and considers the acknowledgment of itself an unconditional answer to the statute.” And after referring to the cases touching this doctrine, he proceeds: “But if there are conflicting authorities upon the point, if the principles, upon which the authorities I have mentioned are' founded, appear to be doubtful, and the opposite authorities more consonant to legal rules, we ought to grant a new trial.” He then quotes the words of-the statute, and proceeds,” though this statute puts all these actions upon the same footing, it is only in actions of assumpsit, that an acknowledgment has been held an answer; and when in the case of Hurst v. Parker, it was decided to be inapplicable to actions of trespass, lord Ellenborough gave what appears to be the true reason, that in assumpsit an acknowledgment of the debt is a fresh promise, and that promise is considered as one of the promises laid in the declaration, and one of the causes of action which the declaration states. If an acknowledgment, had the effect, which the cases in the plaintiff’s favor attribute to it, one should have expected that the replication to a plea of the statute would have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute; whereas the constant replication, ever since the statute, to let in evidence of an acknowledgment, is, that the causes of action accrued (or the defendant made the promise in the declaration) within six years; and the only principle upon which it can be held to be an answer to the statute, is this, that an acknowledgment is ■evidence of a new promise, and as such constitutes a new cause of action, and supports and establishes the promises which the declaration states. Upon this principle, whenever the acknowledgment supports any of the '"'promises in the declaration, the plaintiff succeeds; when it does not support them, (though it may shew clearly, that the debt never has been paid, but is still a subsisting debt) the plaintiff fails.” The chief justice then cites and comments on all those cases shewing that an acknowledgment is a new promise ; and concludes this point thus: “All these cases proceed upon the principle, that under the ordinary issue on the statute of limitations, an acknowledgment is only evidence of a promise to pay; and unless it is conformable to and maintains the promises in the declaration, though it may shew to demonstration that the debt has never been paid, and is still subsisting, it has no effect.”

Therefore, upon the pleadings in the case before us, upon the plain words and meaning of the statute, upon principle, and upon authority, I am clearly of opinion, that the evidence demurred to does not support the issue on the plaintiff’s part; and that the judgment ought to be reversed and judgment entered for the appellant.

CABELE and BROOKE, J.,

concurred in the opinion, that there was nothing to take the case out of the statute of limitations, and that the law on the demurrer to evidence was for the appellant.

TUCKER, P.

The question on this demurrer to evidence, which I think it material to consider, is, whether the action of debt on the note can be sustained by evidence of an acknowledgment that it was due, the day of payment of the note, being more than five years before the commencement of the action?

It is laid down, as a general rule, that the statute of limitations must be pleaded, and cannot be given in evidence on the general issue; 4 Bac. Abr. Limitation of actions, F. p. 484 ; 2 Wm. Saund. 63, a, b. To this rule we have an admitted exception in the action of detinue; and at an early day lord Holt was of opinion, that the action of debt formed another exception, for he thought the statute "Vas proper evidence 'x'under the plea of nil debet. Draper v. Glassop, Salk. 278. This opinion does not seem to have been universally acquiesced in: 1 Wms. Saund. 283, n, 2; Lindo v. Gardner, 1 Cranch 343; Id. append. 465; Pearsal v. Dwight, 2 Mass. Rep. 87. And it would, perhaps, have been as well that it never had obtained. The importance of requiring the statute to be specially pleaded, is obvious from the sur-prize to which both plaintiff and defendant are exposed by the contrary course. The plaintiff is met at the trial by the defence of the statute; and the defendant" on his part, who makes the defence, is utterly in the dark as to which of the various exceptions to it, the plaintiff may rely upon; whereas if the statute be specially pleaded, the exception must be specially replied; Bogle v. Conway, 3 Call 1. It must be admitted, however, that in Murdock v. Herndon’s ex’ors, 4 Hen. & Munf. 200, and in Beattie v. Tabb’s adm’rs, 2 Munf. 254, the opinion of lord Holt is strongly countenanced ; and in the former judge Roane goes so far as to intimate, that under the plea of nil debet, the effect of the statute might be rebutted by proof of recent acknowledgments. The question not having been debated, and the court not being full, I shall not venture to controvert the principle thus recognized by this court. I shall consider the matter in both aspects, though the defendant in this case has chosen to plead specially ; which he ought not to have done if the matter was proper evidence under the general issue; 5 Bac. Abr. Pleas and Pleadings, G. 3, p. 370; Boot v. Wilson, 8 East 311.

Eirst, then, upon the supposition that the statute of limitations must be specially pleaded, it seems to me to be obvious, that a subsequent acknowledgment or promise cannot support the action. Thus, the plea in this case is, that the action did not accrue within five years: what action? the action on the note. Now, if the action on the note did, as is manifest, accrue more than five years before the suit, how can the jury find this issue for the plaintiff, upon the proof that the defendant had subsequently acknowledged the debt *to be due? That subsequent acknowledgment might, indeed, give a new cause of action, and be the foundation of an action of assumpsit; and with or without an express promise to pay, it might be the foundation of another action of debt. But certainly it does not sustain this action of debt. This action of debt rests for its support upon a note, of a certain date and payable at a future time. The proof is of an oral promise at another date, to pay at a different time, for the original day of payment was past. Do the allegata and probata correspond? If a written note, varying from that described in the declaration, in a single cent, or in the day of paj'ment, had been offered in evidence, it must have been rejected as not supporting the action; and though it is admitted that assumpsit on an oral contract may be sustained by an agreement in writing to the same effect, M’Williams v. Willis, 1 Wash. 199, 202, yet it cannot be pretended, that an action of debt on a promissory note, could be sustained by evidence of an oral acknowledgment of debt, or by any express promise by words, to pay the sum demanded in the declaration. X am, therefore, of opinion, that upon this issue, the evidence is not sufficient to sustain the plaintiff’s action.

Would the case be materially altered, if we view it, secondly, upon the supposition that the plea had been nil debet? I think not. In that aspect also, the same difficulties would present themselves. The evidence introduced shews the cause of action set forth in the declaration to be barred, and that which is offered to avoid the bar, is’ an acknowledgment of debt which does not fit or support the declaration. If there had been the most express promise, it would not have sustained it, because the contract therein set forth is not the same, but another. The allegata and probata do not correspond.

It is said, however, that this objection has been made in the english courts, in the action of assumpsit, and overruled ; Leaper v. Tatton, 16 East 420. It was well answered, that even in the action of assumpsit the inveterate practice *'alone has prevented the court from requiring the plaintiff to declare on the special promise; A’Court v. Cross, 3 Bing. 329; 11 Eng. C. L. R. 126; Upton v. Else, 12 Moore 303; 22 Eng. C. L. R. 451. Besides, there is confessedly a looseness in the action of assumpsit, which, is unknown to the action of debt, and where there are money counts in the declaration, there could be no difficulty in sustaining the action by proof of a subsequent promise, whether it was looked upon a new promise, or as drawing down the original cause of action to the date of the subsequent acknowledgment.

It may perhaps .be supposed, that the effect of the subsequent acknowledgment or promise, is not to create a new cause of action, but to revive the old, and to draw it down to the subsequent date. I do not think so. It is obvious, that, in this regard, there is no difference between an acknowledgment of a preexisting debt, and an express promise to pay it. Eor an acknowledgment of debt as much constitutes a right of action as any promise however express. I shall, therefore, in the following remarks, make no difference between them.

The various and conflicting opinions upon the statute of limitations, form a topic of frequent remark in courts of justice. The attempt to reconcile them would be vain and futile, since thej' are on all hands conceded to be contradictory. No sooner had the statute passed, than ingenuity began to exert itself, in order to elude its operation. The first attempts were 'resisted, and an express promise was held necessary. 2 Show. 126; 12 Vin. Abr. Evidence, T. b. 63, pi. 4, p. 229; Hyleing v. Hastings, 1 Ld. Raym. 389. But subsequent decisions seem to have operated, in effect, a repeal of the statute. It had provided, that the actions enumerated should be brought within five years, next after the cause of action or suit, and not after: yet the courts decided, that though the action was barred by the statute, it was revived by a new promise; and it • must be confessed, that instead of considering the new promise as a new cause *of action, they considered it as reviving the old promise or original cause of action. So far indeed, was the notion carried, that, in the time of lord Mansfield, it was decided, that an acknowledgment of the debt after the commencement of the action, would take it out of the statute; Yea v. Fouraker, 2 Burr. 1099. This leaves no doubt, that the old promise was considered as revived, and the operation of the statute as put out of the way by the acknowledgment. And even to this day, there are many who take this view of the subject. Thus, in Scales v. Jacob, 3 Bing. 638; 13 Eng. C. L. R. 85, 90, Burfough, J., says, that the'acknowledgment within six years keeps the debt alive, though he admits that a new promise after six years, creates a new obligation. See also the case of Upton v. Else, before cited. And in Leaper v. Tatton (where the promise was after six j'ears), lord Ellenborough says, “it is the common practice to declare on the original contract, and the only question is, whether the defence given by it lias been waived.’’ Moreover, in Dowthwaite v. Tibbut, 5 M. & S. 75, where the defendant acknowledged the debt but refused to pay, the acknowledgment was held sufficient; and must therefore have had the effect of reviving the original debt, since the refusal to pay was certainly no new promise. The same principle is found in Bryan v. Horseman, 4 East 599. And in Jones v. Moore, 5 Binney 582, Brackenridge, J., combats the idea of a new promise being implied, instead of the old cause of action being revived. It cannot be necessary to go into any argument to shew, that these opinions are in the teeth of the statute. The statute declares the action shall not be sustained more than five years after the cause of action accrued; the courts say it shall, provided there be an acknowledgment to take the case out of the statute.

This way of considering the question is not necessary to effectuate the ends of justice ; it is in conflict with the forms of the pleadings, which are the best evidences of the law; it jars with acknowledged principles, and is rejected by the *more modern opinions of the courts, which are going back to the doctrines in the time of Shower and lord Raymond.

1. It was unnecessary to violate the statute,' by considering the original cause of action as revived. Eor the subsequent acknowledgment or promise, whether before or after the expiration of five years, was a sufficient ground on which to sustain a new action. Debt or assumpsit might have been sustained; for even the acknowledgment of debt without a promise, is sufficient to support an action of debt, or to sustain an implied promise of payment. And in the action of assumpsit, though the suit may have been brought on the original promise, for instance, on a promissory note, yet the new promise, implied from the acknowledgment of debt, might always be given in evidence under the general counts.

2. The form of the pleading corresponds with this view of the subject. The replication to the plea of the statute is, not that the defendant acknowledged the preexisting debt within five years, which would certainly not be a good plea under the statute, but that he promised within five years; and this averment may be established either by proof of express promise, or by proof of an acknowledgment of debt from which the law implies a promise.

3. The idea of the acknowledgment reviving the original debt, instead of amounting to a new and substantive cause of action, not affected by the statute, jars with indisputable principles. Thus, in assump-sit against an executor, upon the promise of his testator, evidence of an acknowledgment of the debt by the executor, will not support the action ; that is to say, it does not revive the original promise of the testator, but the action can only be sustained upon the executor’s promise. Green v. Crane, 2 Ed. Raym. 1101; Ward v. Hunter, 6 Taunt. 210, 11 Eng. C. L. R. 359; Atkins v. Tredgold, 2 Barn. & Cress. 23, 9 Eng. C. L. R. 12; Hickman’s ex’ors v. Walker, Willes 27; Sarell v. Wine, 3 East 409; Kinder v. Paris, 2 H. Blacks. 561. So, where an action was brought against A. and B. and C. *the wife of B. upon a joint note of A. and C. made before her marriage; an acknowledgment of the note by A. after six years, and after the marriage, was not evidence to support the issue; Pittam v. Foster, 1 Barn. & Cress. 248, 8 Eng. C. L. R. 67. Had it revived the original action, it must have been sufficient, but being a' new promise, it did not bind C. who was then covert; and, of course, it did not bind B. her husband.

4. The notion of the original cause of action being revived, is negatived by the greater part of the more recent and most respectable authorities. Thus in the last cited case of Pittam v. Foster, chief justice Abbott states the question to be “whether an acknowledgment made within six years, operates as a new substantive promise, or draws down the original promise to the time when the acknowledgment is made.” He cites Hurst v. Parker, 1 Barn. & Ald. 93, where lord Ellenborough says, “that in actions of assumpsit an acknowledgment of the debt is evidence of a fresh promise;” and his own opinion and those of the rest of the court are sustained by that position. In the case of A’Court v. Cross, there was an acknowledgment of debt with an express declaration, “I will never pay itthe court seems to have been strongly impressed with the embarrassment and difficulties produced by conflicting decisions, and to have desired to settle some principles in that case, which should not be departed from. The chief justice states, that where the debtor promises to pay, he cannot avail himself of the statute, because this promise founded on a moral consideration, is a new cause of action. In Scales v. Jacob, the defendant said, he was not able to pay, but would pay when he could. There was a divided court: but Gazelee, J., and Best, C. J., sustain the position I am contending for; and Burrough, J., admitted it, where the acknowledgment is after six years, but denied it in that case where it was before the bar was complete. “The cases shew,” says Gazelee, “that a'promise made under such circumstances as the present case, is a new promise, and not *a revival of the old one.” And the chief justice says, “It is clear that after the six years, the plaintiff has no cause of action, except on the new promise; and that being conditional, the condition attached to it must be observed. The new promise does not bring down the old cause of action, but creates a new one: the form of the pleadings sufficiently indicates this &c.” And in Tanner v. Smart, 6 Barn. & Cress. 603, 13 Eng. C. L. R. 273, lord Tenterden, delivering the judgment of the whole court, declares that an acknowledgment is no answer to the statute, except in actions of as-sumpsit ; and moreover, that it does not revive the old promise but is evidence of a fresh promise.

The same opinions are well sustained by chief justice Tilghman in Jones v. Moore, 5 Binney 576. See also Roosevelt v. Marks, 6 Johns. Ch. Rep. 266, 290. citing Danforth v. Culver, 11 Johns. Rep. 146; Laurence v. Hopkins, 13 Id. 288; Sands v. Gelston, 15 Id. 511.

I am, upon the whole, clearly of opinion, that the acknowledgment has the effect of creating a new promise, and does not revive the old one; and if so, it seems obvious that an action of debt upon the old contract* which is barred, cannot be sustained by proof of the new promise. Indeed, it is very clearly stated in two of the cases cited, that the doctrine of taking a debt out of the statute by subsequent acknowledgment only applies to cases of assump-sit; 13 Eng. C. L. R. 93, 375, 11 Eng. C. L. R. 126.

The other points in the case it is not necessary to discuss as this is fatal to the plaintiff’s demand.

Judgment reversed, and judgment entered for the appellant.  