
    Woolsey Burton, Indorsee of Nathaniel Ingraham, v. Thomas Robinson.
    Mothing short of a direct acknowledgment, or a distinct admission of the •existence of the debt as a subsisting demand, is sufficient to take it oui .of the operation of the statute of limitations.
    A qualified and conditional acknowledgment of a debt barred by the statute will not revive it, unless the condition is performed.
    This was an action of assumpsit on a promissory note made by Thomas Robinson, the defendant, to the order of Nathaniel Ingraham, on'the 8th day, of August, 1840, for $500, and indorsed by the latter to Woolsey Burton, thó plaintiff. The action was commenced on the 5th day of September, 1854, and the only defence was the plea of the act of limitations. The plaintiff relied on a subsequent acknowledgment to take it out of the operation of the statute; and for this purpose he proved, by a witness who was present in the" spring of 1852, after the death of In-graham, the indorsee, at a settlement between his administrator and the defendant, and on the production of the book of accounts of the deceased, there appeared a credit on his account against the defendant for his note of $500, and the' administrator seemed to entertain some doubt whether such a note had ever been given to Ingraham by Robinson, and wished to know where it was, as he could find no such note among Ingraham’s papers, when Robinson informed him that it was in the hands of Woolsey Burton, and said that something had been paid on it; he did not say that it had been paid in full. The witness did not see the note, however, nor know the date of it, or that it was the same as the promissory note now produced and shown to him. The counsel for the plaintiff, for the same purpose, also offered in evidence an agreement in writing, bearing date September 4, 1854, entered into and signed by Woolsey Burton, administrator of Miers Burton and Thomas Robinson, pending a suit between the parties in that character, and which had been referred out of court, in which it was agreed between the parties that “ a certain promissory note of the latter to Nathaniel Ingraham, dated August 8,1840, for $500, and by him indorsed to Woolsey Burton in his own right, or any payments thereon, should not be considered by the referees in the case then pending between the parties as aforesaid.”
    
      Robinson, for the defendant,
    contended that no such acknowledgment of the note as a present subsisting demand against the defendant, had been proved by the evidence offered as would take the case out of the operation of the statute of limitations, for which he relied ou the authority of the two cases lately tried together in the Court of Errors and Appeals, before all the judges in bank, of Waples’s Administrator v. Morris’s Administrator, and Burton v. Waples’s Administratrix. 
      
    
    
      
      C. S. Layton, for the plaintiff,
    insisted that there was evidence of a sufficient acknowledgment to avoid the plea and take the case out of the operation 'of the .statute of limitations. 1 Ch. Pl. 639; 2 Saund. Pl. and Ev. 648; New
      
      lin v. Duncan, 1 Harr. 204; Black's Executors v. Reybold, 3 Harr. 528.
    
      
       The eases of William E. Burton v. Mary A. Waples, Administratrix of Henry C. Waples, deceased, and of Mary A. Waples, Administratrix of Henry C. Waples, deceased, v. William E. Burton, Administrator c. t. a. of Ann C. Morris, deceased, above referred to by Mr. Bobinson in his argument, were decided in the Court of Errors and Appeals, .June Term, 1854, on questions of law, reserved for hearing before all the judges in bank, but were accidentally omitted in the publication of the last volume of Harrington’s Beports. The learned reporter, however, has kindly furnished me with his manuscript report of the cases ; and as it was cited and relied on by the learned counsel for the defendant, in Burton, indorsee, &c., v. Robinson, I have thought it not improper to append and publish it as a note to that case.
      The cases referred to were in the nature of cross actions at the April Term, 1854, of the Superior Court for Sussex, and when called for trial, as there was no dispute about the facts, by consent of counsel and the direction of the Court, a special verdict was taken in each case, and the question of law arising thereon, which was, whether on the facts found by the jury the action of the plaintiff was barred by the statute of limitations pleaded by the defendant, was reserved for a hearing before all the judges at the ensuing term of the Court of Errors and Appeals.
      In the case of William E. Burton v. Mary A. Waples, Administratrix of Henry C. Waples, deceased, the special verdict was as follows: “ The plaintiff had furnished the defendant with a statement of his account against the estate of Henry C. Waples, deceased, duly probated, commencing January 23, 1844, and closing October 9, 1846. Mrs. Waples, as the administratrix of Henry 0. Waples, deceased, had also an account against the plaintiff, William E. Burton, as the administrator c. t. a. of Mrs. Ann C. Moms, late Mrs. Ann 0. Barnard, deceased, which was also barred by the statute of limitations. The parties to the action met in the presence of G-. H. Wright and John D. Bodney to examine the accounts, and no objection was made to the correctness of either of them. Mrs. Waples stated that the plaintiff’s account was right, but afterwards said in the same conversation that it was large, and larger than she had expected, and she would have to plead the act of limitations. This she said laughingly. Mr. Burton said, if so, he must bring suit at once. Mrs. Waples replied, she would not plead the act if Mr. Burton.would pay the claim against Mrs. Morris, or if he would agree not to plead the act of limitations against it. Mr. Burton did not agree to either, but said he was willing to pay his half of it if his brother-in-law, Mr. Barnard, the son of Mrs. Morris, who got half of her estate, and was equally bound with him for it, would consent to pay his portion of the account.”
      In the other case, of Mary A. Waples, Administratrix of Henry C. Waples, deceased, v. William E. Burton, Administrator c. t. a. of Ann C. Morris, deceased, the following was the special verdict returned by the same jury: “ John D. Bodney was the agent of the plaintiff in the administration of the estate of the said Henry 0. Waples, deceased, and with his principal, Mrs. Waples, the administratrix, met at her house William E. Burton, the administrator of Mrs. Morris, in January, 1849, for the purpose of settling the accounts between the estates of H. 0. Waples and Mrs. Morris, late Mrs. Barnard. The account against the latter, running from 1841 to 1846, was produced and examined by the parties, when William E. Burton said he had no doubt the account was correct and had not been settled. He admitted the propriety and justness of the account, and was willing to pay his part of it (he married the daughter and one of the heirs-at-law, of Mrs. Morris), if his brother-in-law, William D. W. Barnard, the son and other heir-at-law of .Mrs. Morris, who lived in Missouri, would pay his part of it, and desired Mrs. Waples to write to him'on the subject. In June or July, 1860, William E. Burton said again to Mrs. Waples’s agent, Mr. Bodney, that he was willing and wished the account to be settled, and was willing to pay his part of it, if Mr. Barnard would pay his part of it. He admitted the account to be correct, and promised to pay his part of it, if Barnard would consent to pay his portion of it, and added, that he would be glad to hear from him, as'he desired the matter to be settled, and then had sufficient rents in his hands from the real estate of Mrs. Morris to satisfy and pay it; that the administration of her estate had been closed, and he wished to hear from Barnard on the subject, to save the necessity of passing another account upon it.”
      The question was whether, on these facts, there Was a sufficient acknowledgment in both or either of the cases to remove the bar of the statute of limitations; and this question was directed by the Court to be reserved for a hearing before all the judges at the next term of the Court of Errors and Appeals. And now, at this term of the said court, the cases came up for hearing as directed.
      
        E. £). CuUen, for the plaintiff in the first, and for the defendant in the second case, contended that any admission by a defendant, whether as an administrator or as the party originally bound, amounting to an acknowledgment of the existence of an unsatisfied debt, will take the case out of the operation of the statute of limitations. Because the promise to pay it is implied from the acknowledgment of the existence of the debt. But such an acknowledgment must be absolute, and not conditional merely ; for a conditional promise to pay is no promise, unless it is shown that the condition was performed. Waples v. Layton & Sipple, 3 Harr. 508; Black’s Admr. v. Reybold, Ibid. 528; Newlin v. Duncan, 1 Harr. 204; Chambers v. Fennimore’s Admr. 4 Harr. 368; Bennington v. Parkins’ Admr. 1 Harr. 128; Ang. on Lim. 218; Blanch. on Lim. 61, 117; 1 Barn. & Cressw. 248; 1 Selwyn’s N. P. 140; Ang. on Lim. 249; 13 Eng. C. L. R. 273; 2 Crompt. & Mees. 458, 468; 1 Pick. 368; 8 Johns. 407; 6 Wend. 394; 11 Mass. 450; 22 Eng. C. L. R. 451; 1 Denio, 247; 1 Selw. N. P. 138, 147; 14 Mees. & Wels. 740; 15 Wend. 284, 302; 7 Wend. 267; 2 Pick. 368; 2 Wash. C. C. Rep. 514; 3 Wend. 190; 1 Peters, 351; 11 Wheat. 309; 15 Johns. 519; 1 Archb. N. P. 208, 228; 21 Eng. C. L. R. 427; Wilk. on Lim. 33, 63, 70; 4 Mees. & Wels. 31.
      He argued, on these authorities and from the special verdicts, that in the first case the acknowledgment was absolute, and in the second a conditional one, and that judgment should be rendered for the plaintiff in the former, and that the verdict ought to be set aside in the latter suit.
      
        Houston, contra: However vague and indefinite may have been the principle ruled and established in the early cases on this question, the later decisions in this country, as well as in England, have endeavored to limit and define the nature and effect of admissions now necessary to take a case out of the operation of the statute of limitations; and accordingly it is now held, on the authority of the later and more maturely-considered cases, in this country at least, commencing with the ruling of the Supreme Court of the United States in the case of Bell v. Morrison, 1 Peters, 351, that the acknowledgment now required for this purpose must be a clear and unequivocal recognition of a present subsisting debt, and of the party's liability and willingness to pay it, and must be unattended by any circumstance or expression which repels the idea of a willingness, or is inconsistent with the implication of a promise to pay it. The acknowledgment of the administratrix, the defendant in the first case, as found by the special verdict, is clearly not of this character; for it was accompanied, at the time she made it, with an express intimation of her purpose to rely upon the statute of limitations in bar of the plaintiff’s demand, unless he would consent to waive the same defence in her suit against him as the administrator of Mrs. Morris. Her admission was that the account was correct, hut she added that it was larger than she supposed, and she would have to plead the statute of limitations against it,, unless he (Mr. Burton) would waive the plea of the statute as against her claim. She well knew, as matters then stood, that both accounts were barred, and she evidently intended to qualify her admission so as to expressly negative the idea of her willingness or legal liability to pay the plaintiff’s demand, except upon the condition that he would waive the bar of the statute, and be equally just and generous towards her in the claim or account which she held against him as the administrator of Mrs. Morris. Much is said, and loosely said, in the books and in the earlier decisions on the point, as to the ground on which rests this principle of reviving a debt barred by the statute, by a subsequent acknowledgment of it; but the true ground on which it rests is this,—the admission is construed to be an implied waiver of the statute; but there can be no implied waiver against an express refusal to waive it. The decision of the Supreme Court, before referred to, has been so generally approved, that the tribunals in the States have been gradually conforming to it, until it is now ruled and recognized as the established principle on this point in at least one-lialf of them. He cited 2 Wash. C. C. Rep. 514; 2 Pick. 368; 3 Wend. 187; 15 Johns. 520; 7 Wend. 267, 535; 15 Wend. 284, 308; 9 Cow. 674; 21 Pick. 323; 22 Pick. 291; 4 Greenl. Rep. 41, 159; 2 Shipl. Rep. 300, 349, 360; 3 Fairf. Rep. 470; 8 Conn. Rep. 185; 11 Ibid. 160; 9 Ibid. 496; 7 Ibid. 172; 4 N. Hamp. Rep. 315; 12 Verm. Rep. 263; 7 Ibid. 54; 9 Leigh’s Rep. 45; 2 Dev. & Bat. Rep. 149, 330; 2 Bail. Rep. 278; 2 Hill, 326; 1 Bibb’s Rep. 403; 4 Dana Rep. 505; 5 J. J. Marsh. Rep. 255; 7 Yearg. Rep. 534; Breeze’s Rep. 171, 218; 4 Miss. Rep. 358 ; 6 Ibid. 20; 4 Porter’s Rep. 226; 4 Eng. C. L. R. 478; 22 Eng. C. L. R. 385; Ang. on Lim. 245; Chambers v. Fennimore’s Admr., 4 Harr. 368; Farmers’ Bank v. Leonard, 4 Harr. 540.
      These cases establish at present a far different principle from that ruled in many of the earlier cases, which went to the absurd length of implying a promise to pay from declarations even to the contrary, and that notwithstanding an express promise to pay is not necessary to take the case out of the operation of the statute; but an unequivocal and unconditional acknowledgment of a present subsisting liability and willingness to pay, from which the law will imply a promise to pay, on the moral obligation which continues after the legal obligation is discharged, by the statute, is necessary. And therefore the declaration in such cases, when the plain-, tiff relies on a subsequent admission to remove the bar of the statute, is always on the original and not upon the new promise to pay; because the law does not proceed upon the principle that the new promise, either express or implied, furnishes in such a case a new cause of action, but it simply proceeds upon the idea that the subsequent acknowledgment operates as a waiver of the bar of the statute, and that being removed the plaintiff recovers on the original cause of action, which survives as a suf-' ficient obligation in'/ord eonscientice to support the new promise; and hence-the necessity of such an acknowledgment or admission as imports a willingness, and will at least imply a new promise to pay’the debt.
      I agree that a conditional promise will not avail to remove the bar of the statute, unless it is complied with; and both of the cases before the Oourt involve a condition in connection with the admissions found. But if a distinction is to be made between the two cases in this respect, I confidently submit that - the acknowledgment of Mr. Burton, the defendant in the latter case, is much the most direct, unequivocal, and positive, and is decidedly the strongest in favor of the plaintiff’s right to recover. Bor he not. only expressly admitted the existence of the debt as'a subsisting demand against him as the administrator of Mrs. Morris, which he was liable to pay, but repeatedly declared his willingness to pay his part of it, if Mr. Barnard, the other heir-at-law, would consent to pay his portion of it. But this condition was one which did not apply to the ease, or refer at all to his liability for the whole of the debt as the administrator of Mrs. Morris As her administrator he was solely liable, and was the only party bound to pay the whole of it to the plaintiff. As between them, Mr. Barnard had nothing to do with the matter; and his acknowledgment that the account was still due and ought to be settled, and that he desired to have it paid, was the only acknowledgment that could revive it. The admission or repudiation of it, by Mr. Barnard, had nothing to do with it, and in this connection, and for this purpose, could have no effect, one way or the other, upon it. An administrator is not bound to plead the statute of limitations, and Mr. Burton’s admission would not only bind the estate of Mrs. Morris in his own, or in the hands of a succeeding administrator, but would bind Mr. Barnard, the-other heir and distributee, also. In the attempt to settle these accounts between themselves in a spirit of friendship and accommodation, the plaintiff in the latter ease was not dealing with him as a coheir with Mr. Barnard, but as the administrator and sole representative of Mrs. Morris in the matter, and he was the only person who’ could charge the estate by any declarations or admissions that could be made in regard to it. I, therefore, contend that the, acknowledgment is much stronger ,in the latter than in the former case, if any distinction in their legal effect is to be made between them; on which, however, I do not insist, as my opinion and advice have always been that both accounts are barred by lapse of time, and that the acknowledgment in neither case is sufficient to take it out-of the operation of the statute.
      As to the adjudged cases in our own State, it is difficult, if not impossible, perhaps, to extract any precise uniformity of principle or ruling from them on this point, or to reconcile them altogether with each other, on a critical examination of them. But the later and better considered case » of Chambers v. Fennimore’s Admr., 4 Harr. 372, recognizes the principle for which I have contended, and is in accordance with the ruling in the more recent cases in the other States, the long list of which I have already cited. In that case the question was, whether an express promise to pay, in addition to the acknowledgment of the debt, was necessary to revive it as- against an administrator, to which Booth, Ch. J., in delivering the opinion of the Court, said: “An unqualified and unconditional acknowledgment of a present subsisting debt, and that the party is liable and willing to pay it, has always been held in this State to take a case out of the act of limitations;” and “ an express promise to pay is not necessary, either by the original party, or by his personal representative; ” and it is to be hoped that this case will hereafter be followed in our future decisions on this question. In the case of Newlin v. Duncan, 1 Harr. 208, T. Clayton, Ch. J., admits and regrets that the law on this subject is left in a confused and unsettled state, and he correctly argues to show that a subsequent acknowledgment operates as a waiver of the statute, and that the statute does not extinguish the debt. In some cases it has been held that the limitation of the act proceeds on the presumption that the debt has been paid. But this is not so; for it is simply an arbitrary, though a wise rule, established by positive law, and proceeds on grounds of public policy alone—that public policy which is expressed in the legal maxim, interest reipublicce sit finis litium, and nothing more. That the subsequent admission does not operate to revive a debt, or extinguish the obligation, but merely as a waiver of the bar of the statute, is further proved and illustrated by the fact, that if the defendant does not specially plead the statute in bar of the demand, the plaintiff recovers as a matter of course, notwithstanding the lapse of time, which could not be the case if the law, which is explicit and positive in its provisions, presumed payment after the expiration of the time limited for the action, and the original obligation was thereby discharged.
      
        Mr. Cullen, in reply, denied that anything more than a mere acknowledgment of a present subsisting debt -was necessary to take a case out of the operation of the act of limitations. Neither an express promise to pay, nor an admission of a present legal liability, or of the willingness of the party to pay the debt, is necessary for this purpose. Any admission that the debt exists is an admission of a legal liability to pay it; and from this liability the law implies a promise to pay it, whether the party is willing or not. The force and effect of the admission does not depend on the will of the party, but on its extent and effect as a recognition of a subsisting demand at the time when it is made.
      But this has nothing to do with a qualified or conditional acknowledgment ; and Mr. Burton's, in the second case, was clearly and conclusively of that character. He uniformly refused to pay or settle the account of Mrs. "Waples, as the administratrix of her husband, H. C. Waples, without the sanction and consent of Mr. Barnard to. pay his part of it; and in every instance found or stated in the special verdict it appears that he expressly prescribed that as the sole condition on which he would admit the validity of it, now it was barred against the estate of Mrs. Morris. But, in the other case, the acknowledgment of Mrs. Waples was very different. She admitted directly, and without qualification, that his account was right, although she afterwards said in a jocular manner, and with evident hesitation and mortification, t^iat it was large, or larger than she supposed, and that she must plead the statute of limitations to it, unless he would waive that defence on his part to her claim against the estate of Mrs. Morris, which he at once declined to assent to. And here let me ask, what had this claim to do, or what connection had it with his account in his own individual right against the estate of H. 0. Waples, deceased? The one was no defence to the other, and they could not be set off against each other; and this, we have reason to suppose, Mrs. Waples was too well informed not to know when she made that proposition. It was, therefore, a mere pretence or pretext on her part, after making the unconditional admission that his account was correct, and still subsisting against the estate of her husband, to qualify it by an after thought, and by attaching a subsequent condition to it, which had no legal or necessary connection with it; and in this respect her acknowledgment differs most materially from the conditional and qualified acknowledgment of Mr. Burton in the former case.
      
        The Court, without delivering any opinion, afterwards, at the same term, directed the following decision to b,e entered and certified to the Oourt below in each of the cases: The questions of law directed in this cause by the Superior Oourt of 'the State of Delaware, in and for Sussex County, to be heard before all the judges in the Oourt of Errors and Appeals, to wit, whether the statute of limitations pleaded by the said defendant is a bar to the action of the said plaintiff in this cause, having been heard before all the judges in the Court of Errors and Appeals, and the same having been debated by counsel, and duly considered "by all the judges aforesaid, it is hereby considered and decided by the said judges in the said Oourt of Errors and Appeals, that the statute of limitations, pleaded by the said defendant, is a bar to the action of the said plaintiff in this cause; and it is hereby ordered that this decision be certified to the said Oourt below, &c.
    
   The Court,

Harrington, Ch. J.,

charged the jury: In the opinion of the Court, nothing short of a direct acknowlodgment, or a distinct admission of the existence of the debt ás a subsisting demand, is sufficient to take the case out of the operation of the statute of limitations; but if they were satisfied that the written agreement which had been given in evidence-between the plaintiff, as the administrator of Miers Burton, deceased, and the defendant, was signed by the latter, then the Court considered it such an acknowledgment of a subsisting, demand on the promissory note in question, as would remove the bar of the statute.

ttoTlfi.—Houston, J., did not sit in this case, having been of counsel for the defendant.  