
    Cohen & Nesbit v. Joseph Aubin.
    (An offer to pay a very inconsiderable portion of a debt barred by the statute of limitations, in order to get the evidence of the debt out of the hands of the creditor, with no distinct admission by the debtor of his liability for the whole, or any part, and no express promise to pay, is insufficient to remove the bar of the statute, or revive the debt, vide Young v. Monpoey, ante, p. 278.
    Tried before Mr. Justice Richardson, at Charleston, January Term, 1830.
    Assumpsit on a bill of exchange for two hundred and seventeen dollars, drawn by defendant on a mercantile house in New-York, and protested for non-payment. The chief question in the case arose out of the plea of the statute of limitations. The bill became payable in April, 1819, and although it was questioued, whether sufficient notice of non-payment was given to defendant, the evidence appears to have been satisfactory, that he was duly notified. This action, however, was not instituted until June, 1827; but the plaintiffs relied upon the following facts, to take the case out of the statute.
    A few weeks before this suit was commenced, an agent of the plaintiffs met defendant, and demanded payment of the bill; to which defendant replied, that he knew nothing of it. The agent inquired if he meant to deny his hand writing; he said he did not, and admitted the signature to the bill to be his own. The agent then handed him a letter from one of the plaintiffs, in which the agent was directed to collect the bill, or to endeavour to make some compromise with the defendant. Defendant perused the letter, and then observed, “ you have not made any proposal for a settlement;” to which the agent replied that he would surrender the bill, and give a full discharge, on payment of one hundred and fifty dollars. Defendant said it was too much, but he would think of it. A few weeks afterwards, the agent called on defendant, and inquired whether he had thought upon it; defendant replied that he did not think he was liable for the debt, but he would be glad to have the bill out of the agent’s hands, and would not mind giving a few dozen of wine for it: The agent asked, “how many?” Defendant replied, “ only a few dozen to get the bill out of your hands.” Nothing further was said on the subject, and this action was immediately brought.
    His Honor held the evidence insufficient to take the case out of the statute. The defendant’s proposal to give a few dozen of wine to obtain possession of the bill, was obviously an offer to purchase peace, rather than an admission of the existence of the debt. He left it, however, to the jury to judge of the meaning and intention of the parties; and if they could understand the defendant as admitting his liability, they would be authorized to find for the plaintiff. The jury found for the defendant.
    The plaintiff now moved to set aside their verdict, and for a new trial, on the ground, that the evidence was sufficient to revive the plaintiffs’ remedy, and to take the case out of the statute.
    Gilchrist, for the motion.
    Cited Cowp. 548. Lawrence v, Worrall, Peake’s N. P. C. 93. Leaper v. Tatton, 16 East, 420. Buller’s N. P. 149. a. Burden v. M'Elhenny, 2 N. & M. 60. Glenn v. M'Cullough, Harp. 484. Lee v. Perry, 3 M‘C. 552. And contended, that it was now the settled law, both in England and in this State, that any acknowledgment, however slight, which rebuts the presumption of payment arising from lapse of time, will take the debt out of the operation of the statute of limitations. The theory of the statute is, that after the lapse of time the evidences of payment may be lost, and it would be unjust to the debtor to compel him to produce them. But where it can be shewn by any expression of the debtor, that he knows the debt is not paid, the reason of the rule does not apply, and the statute ceases to be a bar. It was not the intention of the statute to convert indulgence into a release, or to afford a shelter to dishonesty: And hence, whenever the debtor allows it to escape him, that he knows the debt is not paid, he has always been held bound, although he may have expressly refused to pay; and even in some cases, as in Glenn v. M'Cullougb, have denied the original justice of the debt.
    The present case is completely within the rule laid down in those above referred to. The offer to pay a part of the debt shewed that the defendant knew that the whole was not paid; nor did he pretend to say that it ever had been. The doubt which he expressed of his liability, was evidently founded upon the supposed insufficiency of the notice of non-payment; and that was of itself sufficient to rebut the presumption of payment.
    Dunkin, contra.
    
    Cited Bell v. Morrison, 1 Peters, 351. Clementson v. Williams, 8 Cranch, 72. Wetzell v. Bussard, 11 Wheat. 309. There was an obvious distinction, very rarely observed however, between an acknowledgment made before, and one made after a debt is barred by the statute. In the first case, the slighest acknowledgment is and ought to be sufficient; for it may be, that further indulgence was granted in consequence of that acknowledgment, and it would, therefore, be a fraud upon the creditor, to construe the indulgence into a discharge of the debt. An actual promise is unnecessary, because there is a subsisting legal obligation. There need be no new assumpsit; it is sufficient if there is enough to rebut the presumption, hereafter to be raised by the statute, that that obligation has been discharged. All the reasoning on the other side applies in full force to such a case; but is wholly inapplicable to the case of an acknowledgment made after the debt is actually barred. Here there is no subsisting legal obligation; nothing from which an assumpsit may be implied in law. The old debt is gone; for the law has paid it. It may form a sufficient consideration to support an express assumpsit; but it is the new promise which gives the right of action. It is precisely the same as if the old debt had never existed, or were the debt of a third person; except that in the latter case the new promise must, under the statute of frauds, be in writing; and perhaps, with this further difference, that a new consideration is not necessary. The question was very fully considered in the case of Bell v. Morrison, and the judgment delivered by Story, Justice, in that case is conclusive. 1 Peters, 355.
    The failure to observe this distinction, has gone very far both in England and this country, to repeal the statute. It has never, however, been expressly denied, and it is time it were distinctly; recognized, or the statute declared at once to be a nullity. If this distinction is conceded, there can be no pretence of the liability of the defendant in this case, if, in fact, any ever existed. The debt was barred, and so far from a new promise, the defendant did not even acknowledge that his liability, as drawer of the bill, had ever been fixed by regular notice. He denies his liability from beginning to end; and no expression could be extorted from him of a contrary import. His offer of a few dozen of wine to get possession of the bill is no acknowledgment of the debt. It was the price of peace ; and the law, in order to discourage litigation, never infers the acknowledgment of an obligation, from an offer to avoid litigation. Buller’s ¡V. P. 236. 5.
    Gilchrist, in reply.
    The case of Bell v. Morrison, was avowedly founded on the local law of Kentucky, and furnishes no rule for this Court. We have adopted the English rule, and it is too well established by repeated decisions of our own Courts, to be now shaken. It would divest vested rights, and affect the obligation of contracts, to overrule what has long been regarded as the settled law of this State.
   Johnson, J.

The principle involved in this motion, came under the review of the Court in the case of Young v. Monpoey, decided a few days since, in which a distinction was taken between acknowledgments made before, and after a debt was barred by the statute of limitations. In relation to the first class, it was held, that very slight circumstances would be sufficient to prevent the operation of the statute; but that to revive a debt already barred, there must be a promise to pay, either expressly or by implication. This case belongs to this latter class, for here the debt was barred at the time of the supposed acknowledgments. There is no express promise, and the only question is whether one can be implied: The admission by defendant that he drew the bill, and his offer to give a few dozen of wine to get it out of the bauds of the witness, when taken alone, and unconnected with the circumstances, furnish at best but very equivocal evidence of even the previous existence of a subsisting debt; but when taken in connexion with the defendant’s declarations, that he knew nothing about it, and that the plaintiffs could not recover it, they amount to nothing. The evidence shows not only the absence of an intention, on the part of the defendant, to reassume the payment; but shows, also, as clearly as circumstances well could, a determination not to pay. This is the conclusion drawn both by the judge, and by the jury who tried the case, and, this Court concurs with them.

Colcock, J.

I concur, as I consider the point settled by the case of Young v. Monpoey.

Motion refused.  