
    Jane Russel, adm’x., vs. John Gass.
    Appeal in the nature of a writ of error.
    To take a cause out of the operation of the statute of limitations, there must be an acknowledgment, by the defendant, of an actual subsisting debt due to the plaintiff, within three years next before the commencement of the action.
    £n agreement, or premise, by defendant, to settle by the books of plaintiff, is not a sufficient acknowledgment, although the books show a balance against defendant.
    So a promise, by defendant, to settle by the books of plaintiff, if he would settle by the books of defendant, will not revive a debt barred by the statute.
    . This was an action of assumpsit brought by Jane Rus* sél, administratrix, &c. of John Russel, deceased, against the defendant Gass, who pleaded — 1st, non assumpsit; 2d, á set off of $152 50, and 3d, the statute of limitations.
    - Upon the first and second issue the jury found for the plaintiff; but upon the last, they found in favor of the defendant. A motion for a new trial was made by the counsel for the plaintiff, which was overruled by the court, and j udgment entered upon the verdict.
    All the evidence, taken at the trial in the circuit court is set out in the bill of exceptions; but that part of it which applies to the act of limitations, it is deemed only necessary to be here stated. It appears, that in 1817, within three years before the commencement of this suit, the defendant, Gass, went to the house of the plaintiff, Mrs Russel, and said to her, “there are old debts between Mr Russel and myself of which both parties may take advantage of the law; and then inquired, whether she meant to take advantage of the statute of limitations, in the settlement of their accounts, or whether she would settle by the books;” to which she replied, “that whenever she had reason to believe the account was honest, she would not avail herself of the law.” He then said well, “7 will settle by the books, and I have entrusted Mr Russel to keep debts and credit's.” He stated at the same time, that “he had let Mr Russel have some wheat and whiskey, and wished to know if he had credit for them on the books.” It does not appear, from the evidence, whether Gass kept books, or not. Upon inspection of the books of John Russel, deceased, there appeared, after deducting all the items credited to Gass, a balance of $140 98§ due the estate of Russel.
    Upon the foregoing statement of facts, the plaintiff’s counsel requested the court to charge the jury, that the statute of limitations would not bar the plaintiff’s recovery. But the judge refused so to charge; but stated to the jury, “that even if the defendant had promised not to plead the act of limitations, he still had a right, notwithstanding such promise, to rely upon it. That if the defendant had acknowledged within three years, that he was indebted plaintiff, that would take the debt out of the statute^ his saying he would settle by the books, would no4 take the case out of the statute; (as he stated in the sameWm-'y] versation he wished to know if he was credited with the wheat and whiskey,) that he considered this question or statute of limitations already substantially determined in fljjg case j-,y ^]le court of appeals.” To which there was an exception, and an appeal, in the nature of a writ of error, prosecuted to this court.
    
      M‘Kinnie for the plaintiff in error.
    
      T. L. Williams for defendant in error.
   Per Curiam.

The facts presented by the record in this case, do not substantially vary from the facts, as they appeared when this cause was before this court at July term, 1826; and upon the authorities then cited and the opinion then given, the court is of opinion, the statement by Gass, “that he would settle by the books,” &c., will not take the case out of the operation of the statute. These words do not import an acknowledgment, on his part, of an actual subsisting debt, then due by him to the estate of John Russel.

Let the judgment of the circuit court be affirmed.

Judgment affirmed.

Thé following is the opinion of the court, alluded to in the above case, as it was delivered by judge Whyte. It is deemed unnecessary to state the facts relied upon, to take the case out of the act of limitations, as then presented by the record, inasmuch as they do not substantially vary from the facts as above stated; and also, because they are adverted to in the subjoined opinion of judge Whyte, (page 274.) The judge having previously stated the facts, proceeded as follows:

The evidence shows, that in this case the dealings between the parties ceased in 1808, and the balance then, if in favor of Russel, became a debt due to him, and his cause of action was completed. From that time, also, the statute of limitations began to run, and the period of eleven years elapsed, before suit was brought. This barred the action. Judical decision has, however, determined, that although the original cause of action has been rendered -inert by time, and wholly inefficient, yet that it may he revived by circumstances. The English decisions have assumed a latitude which their judges regret, and which is less suitable to our state of society, as being less condensed and less staüonary. In the case of Hellings vs. Shaw, (7 Taunton 608,) lord chief justice Gibbs says, “We have, in the first place, the strong inclination of the judge, that this conversation did not take the case out of the statute. I agree, that if the courts could retrace their steps, and could see all the consequences that have arisen, they would have seen it was better to adhere to the precise words of the statute, than to attempt to relieve in particular cases. There are three cases in which the words of the statute would discharge the defendant, but in which the courts have held him liable. One is, when the defendant has admitted the debt unpaid, but has stated that it was discharged by the lapse of time: Another is, where the defendant has stated, not that the debt was due, but that it is discharged by a particular means, to which he has with precision referred himselfj and where he has designated the time and mode so strictly, that the court can say it is impossible it had been discharged in any other mode; there the court have said, if the plain- ■ tiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely. A third case is, where the defendant challenges the plaintiff to produce a particular mode of proof of his liability — there, if the plaintiff produces that proof, the courts have said the defendant shall not be discharged, though the statute says he shall.”

So far, we are informed by the very respectable testimony of chief justice Gibbs, the English courts have gone. Shall we follow them; or rather, shall we make a pause, and adopt a course more congenial with our situation, and more accordant with the letter, as also with the spirit of our statute? Such a course is pointed out to us by the highest authority, the supreme court of the United States. In the case of Clementson vs. Wilson, (8 Cranch 72,) chief justice Marshal, in delivering the opinion of the court, says, “The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. In this case there is no promise, but a simple acknowledgment. This acknowledgment goes to the justice of the account; but this is not enough. The statute of limitations was not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not then sufficient to take the case out of the act, that the claim should be proved, or acknowledged to have been originally just — the acknowledgment must go to the fact, that it is still due.”

This construction of the act of limitations, by the supreme court of the United States, this court adopts, as well from its superior authority, as from its greater conformity with the letter and spirit of the statute, than others, and its salutary influence on society.

In the case before the court, two witnesses were introduced, by the plaintiff below, to testify to a conversation between the parties, for the purpose of taking .the case out of the statute. They say, that within three years before the bringing of the suit, they heard defendant say he was willing to settle by plaintiff’s books, if plaintiff would settle by his, defendant’s, books. Plaintiff said she was willing not to take advantage of the act, if he did not. Defendant said he was willing to settle, if he could get his credits. This conversation does not show tlie acknowledgment of any debt by defendant; it only shows reciprocal pretentions by the parties, not acquiesced in on either side, with defendant's willingness to settle, if he could get his credits. So far from the acknowledgment of a debt in 1808, when these dealings were discontinued, its existence then is rather repelled, from the circumstance that Gass then wanted, and urged Russel, to come to a settlement, which he deferred; and for this reason Gass would deal no further with him. Gass’ claim of a credit of a third tierce of whiskey and 110 bushels of wheat, though not satisfactorily substantiated, corroborate the position, that his, Gass’, understanding always was, that no debt existed; and gives a definite meaning to the above conversation, when he, Gass, said he was willing to settle if he could get his credits — that is, if he could get his credits, there would be no balance against him. There is,. therefore, no acknowledgment of a debt in 1808, much less of a subsisting debt within three years next before the bringing of the suit. The finding, therefore, of the jury, upon the issue joined on the plea of the statute of limitations, was not warranted by the evidence; and the judge erred in not having granted a new trial on that ground.

The judgment of the circuit court must be reversed, and the cause remanded to the court below to be tried de novo.

Judgment reversed and new trial awarded.  