
    John B. Peyton vs. William J. Minor, Executor of Samuel Gustine, deceased.
    The acknowledgment of his debt, or a promise to pay it, by the maker of a promissory note, if made'within six years from the maturity of the note, will be sufficient to take the case out of the statute of limitations; and it seems, in order to have that effect, the promise or acknowledgment must be made within that time.
    The leading objects of the statute of 1840, regulating the practice of the circuit courts, are, 1. To enforce a trial at the second term ; and 2. To procure a verdict of the jury upon the real merits of the controversy. There is nothing in the statute which precludes the circuit court from permitting' pleas to be filed at a term subsequent to the return term, which contain matter for the finding of a jury. A plea of the statute of limitations may therefore, by leave, be so filed.
    In error from the circuit court of Hinds county; Hon George Coalter, judge.
    On the 5th day of December, 1844, William J. Minor, executor of Samuel Gustine, deceased, sued John B. Peyton in assumpsit upon five promissory notes; two of which were dated November 23, 1846; one for $5316, due March 1,1838; the other for $4949-50, due March 1, 1839; the other three dated February 5, 1840, each for the sum of $497-77, and due, one at one day after date, and one on the first of December, 1840, and the other on the first of December, 1841. The writs were returnable to the December term, 1844, of the circuit court of Hinds county.
    At this term, the defendant appeared and plead non-assump-sit; and the cause was continued. At the November term, 1846, the defendant asked and obtained leave to file the following plea, to wit:
    
      “NovembeR Term, 1846.
    “ And the said defendant, at the terms of the courts aforesaid, by leave of the court, first had and obtained for a farther plea to the first and second counts in said plaintiff’s declaration, says, actio non, &c.; because he says that the said several supposed causes of action in said first and second counts, Inentioned and set forth, did not accrue within six years next preceding the commencement of this action, and this he is ready to verify; wherefore, &c.”‘
    The plaintiff excepted to the allowance to file the plea; and' replied to it.
    On the trial, which took place at the November term, 1846, besides the notes sued on, the plaintiff read this agreement, signed by the defendant, to wit:
    “ Raymond, Nov. 15, 1842.
    “I do hereby acknowledge and certify, that on the 23d day of November, 1836, I made a settlement with Samuel Gustine and L. R. Marshall of my account with them, which embraced my operations with them on joint account in lands and negroes; on that day I fell in their debt seven thousand six hundred and twenty-seven dollars, being the balance due by me to them in the settlement for money advanced by said Gustine and Marshall to me, and expended in our joint purchase of lands, and twenty thousand dollars for negroes purchased of them. On that day I gave them in payment thereof my six notes, as follows. (Here the notes were described, including those sued on ; and the writing went on to state more fully the consideration of the notes, and concluded in this way, to wit:) No part of the above sum of $7627 given for the lands which fell to my share, and were deeded to me in our joint operations of land, as above described, has ever been paid by me.
    (Signed) “John B. Peyton.”
    This being all the testimony, the. court below, at the instance of the plaintiff, instructed the jury that “ although they may find that more than six years had expired from the time of the maturity of the note to the commencement of the suit, yet if they find that the defendant did, within six years next preceding the suit, make his acknowledgment in writing that the debt was due and unpaid, they must find for the plaintiff.” The court refused, at the instance of the defendant, to instruct the jury as follows: “that the testimony offered by the plaintiff was not sufficient to take the case otit of the statute of limitations, as to .such notes as became due more than six years before the commencement of the suit.” The defendant below excepted, and has brought the case by writ of error to ¿his court.
    
      Guion and Baine, for plaintiff in error.
    The only question in this case is, whether, after the lapse of .six years from the time when the action accrued, there was such express acknowledgment of the debt or promise to pay it, as would take the two notes (past due, six years,) out of the statute of limitations.
    There is no promise of any sort to pay these notes, other than that contained in themselves. In 1842, two years before the statute barred them, there was an express acknowledgment that they were not paid. And this is the “ subsequent promise ” relied on to take them out of the statute, • after they had been barred. It is obvious this acknowledgment cannot have such an effect. Such a conclusion is an absurdity, to our minds, both in fact and in law.
    The promise, from the very nature of things, must be what the law calls it, “ a subsequent promise.” And for the obvious reason, that there is no presumption of payment or satisfaction to which it can apply, and which it can revive, until it is barred by lapse of time. To construe the statute differently, would make the statute a limitation of twelve years instead of six. For the notes themselves are always an express acknowledgment of an existing debt, as' well as a promise to pay it, until the last hour of the six years which bars them. If, then, any acknowledgment or promise, anterior to the bar, is a new promise, within the meaning of the law, then the notes at the last moment of their legal existence, would revive themselves for another term of six years. But we presume that we need not argue that a promise two years before the bar, is not a promise subsequent to it; for it is a contradiction in terms.
    
      J. J. Deavenport, for defendant in error.
    1. The first point to be settled by the court, is a question of practice arising under the act of 1840, sec. 2, p. 133, pamph, acts,-1840. The question is, whether the defendant had the right under that section of the act, after the return term had passed, at a subsequent term, to plead the statuté of limitations. Does not that act require that with pleas in abatement, and other dilatory pleas, the statute of limitations must be plead at the return term? We think that the law is, that the statute of limitations must be plead at the return term, and that it is a plea that the courts are not to favor; and if not so plead, that the party cannot, after two or three terms have elapsed, come in and ask leave to file such a plea.
    2. The ground of error relied on, on the part of appellant is, that there is no such express promise to pay, or acknowledgment in writing, as would take the note, past due six years, out of the statute of limitations. The instruction asked for on the part of plaintiffs is law. See pamphlet acts of 1844, p. 108, sec. 16. We think this act is conclusive on the question. The reasoning of appellant’s counsel is not valid.
    The notes themselves are only evidences of debt; and their existence after they fall due, are only evidence of what contract or obligations the parties entered into at the time they were executed. After they fell due, they are not new acknowledgments of an existing debt at every possible period from the time they matured until the instant they were barred. They, of themselves, do not import a new acknowledgment at every instant of time that they are due and unpaid. They are only evidences of what the contract between the parties was at the' time they were executed. It is contended, that the acknowledgment, if it had been made subsequent to the time when the six years had actually elapsed, then the promise would have been subsequent. The subsequent promise is the promise subsequent to the time when the note fell due and the statute commenced running, not subsequent to the time when" the six years had elapsed.
   Mr. Justice Thacher

delivered the opinion of the court.

It is contended in this case, by the plaintiff in error, that, in order to entitle a debtor to the benefit of the statute of limitations, the acknowledgment of his debt, or his promise to pay it, must be made after the lapse of six years from the time when the action accrued to the creditor. We have already held, that the promise or acknowledgment must be proved to have been made within the time prescribed by the statute, which, in this instance, is six years from the date of the notes. Davidson v. Morris, 5 S. & M. 564. And an express acknowledgment that the notes sued upon was unpaid, was made by the debtor two years before the action was commenced.

Again it is contended by the defendant in error, that the plea of the statute of limitations, filed by leave of the circuit court at a term subsequent to the return term, was improper, according to the statute of 1840, regulating the practice of the circuit court. The object of the first section of this statute is to afford an imparlance term to defendants: the object of the second section is to require the disposal of all dilatory pleadings and defences filed at the return term, and, if possible, to require the pleadings to be made up, upon which the case is finally to be put to a jury at the _ succeeding term. The leading objects of the whole statute in this particular are twofold, to wit, to enforce a trial at the second term by the court to which the suit is instituted, and to procure a verdict of a jury upon the real merits of the controversy. There is nothing in the statute which precludes the court from permitting pleas to be 'filed at a term subsequent to the return term, which contain matter for the finding of a jury.

The position of the plaintiff in error not being sustained by this court, the judgment must be affirmed.  