
    Thomas Robinson, defendant below, Plaintiff in error, v. Woolsey Burton, indorsee of Nathaniel Ingram, plaintiff below, Defendant in error.
    The acknowledgment of a debt as a subsisting demand, will take a ease out of the operation of the statute of limitations, without an express promise to pay it. Tet the principle seems to require that the acknowledgment should be of a subsisting debt, and recognizing an obligation to pay it as a debt originally just and still due. And to properly value the force of such admissions, the circumstances under which they are inade may be considered.
    But where the acknowledgment, or recognition of the debt relied on, was an agreement between the parties in writing, made at the time of entering into the trial of an amicable action between the plaintiff in a different character, as an administrator, and the defendant, ‘.‘that a certain note, bearing date, &c, from the defendant to-another person, and by him indorsed to the plaintiff in the amicable action in his own right, or any payments or credits applicable thereto, should not be considered by the arbitrators,” it is not sufficient for the Court, in charging the jury, to leave it to them simply to determine whether the agreement merely referred to the note on which the action was brought, but it should also have left it to the jury to say whether the agreement recognized that note, or any part of it, as yet due.
    Writ of error to the Superior Court for Sussex County-. Before Harrington, Chancellor, Gilpin, Chief Justice, and Wootten, Justice.
    The case below was an action of assumpsit on a promisspry note from Nathaniel Ingram to Thomas Eobinson, the defendant below, dated August 8th, 1840, payable twelve months after date, for $500, and by Ingram indorsed to Woolsey Burton, the plaintiff below. Upon the note was indorsed a credit, of the date of the 2d of May, 1842, of, $59.65 for interest, and of $240.83 on the principal. The only defence relied upon by the defendant was the plea of the statute of limitations; and on the trial below the plaintiff offered in evidence, in order to rebut the bar of the plea, and to take the case out of the operation of the statute, as a subsequent acknowledgment of the note by the defendant as a still subsisting demand against him, the following agreement in writing, and signed by the parties to it, between the plaintiff', as the administrator of Miers Burton, deceased, and the defendant, executed on the 4th day of September, 1854 (the action on the note having commenced the next day), on the trial of an amicable action between them before arbitrators:
    “ Woolsey Burton, sole remaining administrator of Miers Burton, deceased, v. Thomas Eobinson.
    “ Amicable Action. Matthew Eench, James Stuart, and Jacob Moore, Esqrs., arbitrators.
    “ And now, to wit, this fourth day of September, A.D. eighteen hundred and fifty-four, it is agreed between the said parties that a certain note, bearing date August 8th, 1840, from the said Thomas Eobinson to Nathaniel Ingram, and indorsed by him to the said Woolsey Burton in his own right, or any payments or credits applicable thereto, shall not be considered by said arbitrators in the above stated case.”
    -The counsel for the defendant objected to the admissibility of the agreement in evidence, on the ground that it was not between the parties to the suit; and as between the parties in the amicable action, it contained no admission of the note as a present subsisting demand against the defendant, the effect of the agreement simply being to exclude it from the consideration of the arbitrators in that action. But the Court overruled the objection, and in the charge to the jury instructed them, that if they were satisfied that the agreement had reference to the promissory note in question, and on which the present action was founded, it was a sufficient recognition of it as a subsisting .demand at that time against the defendant, to take it out of the operation of the statute of limitations, and the plaintiff was entitled to recover. To which the defendant tendered a bill of exceptions.
    
      Robinson, for the plaintiff in error:
    An acknowledgment, to take a case out of the operation of the statute, must be an unqualified and unconditional recognition or admission of a present indebtedness, which the party is liable and willing to pay, and there must either be an express promise to pay, or circumstances proved from which a promise to pay may reasonably be implied. Waples v. Layton & Sipple, 3 Harr. 508; 1 Smith’s L. C. 712, 714, 716; 6 Peters, 86; 1 Excheq. Rep. 118; 1 Peters, 351; 8 Cranch, 72; 3 Wend. 532; 2 Pick. 368; 21 Pick. 323. But such was not the nature of the agreement offered in evidence to remove the bar of the statute in this case. The only purpose and effect of that agreement was, that the promissory note which was then in dispute between the parties, should not be considered in the amicable action which was then on trial before the arbitrators. What is or is not an acknowledgment which will take a case out of the operation of the statute, is a question of intention on the side of the party making it; and if it is doubtful or uncertain, it cannot have that effect. 10 Barr, 129; 4 M. S¡> S. 458; 11 Wheat. 309; 4 Greenl. 413, 441; 5 Conn. 480; 3 Conn. 131; 5 New Hamp. 154; 1 Watts, 275.
    But there is another objection to be made to the charge, and that is, to the terms in which the Court submitted the question involved in the case to the jury. The only question which the Court left to the consideration of the jury was, whether the agreement referred to the promissory note on which the suit was founded, prejudging the question, which was equally a question for the consideration and decision of the jury, whether it contained an unqualified recognition of the note, or of the balance due upon it, as a then subsisting demand against the defendant, or such an acknowledgment in point of fact, as the Court should have instructed the jury would suffice to remove the bar of the statute. The construction and meaning of every agreement is a question of fact for the determination of-the jury; its legal operation and effect it is for the Court alone to consider and decide. But the Court in this case used broader terms, perhaps, than were intended, and assumed to decide, and did decide, not only the legal operation and effect, but the construction and meaning of the agreement, and the intention of the defendant at the time of entering into it, provided the jury should be of opinion that the agreement had reference to this particular promissory note.
    
      C. S. Layton, for the defendant in error :
    What is, or is not evidence, is a question for the Court; also the sufficiency of the evidence in a legal point of view is a question for the Court. In this case the Court instructed the jury, that if they were satisfied from the evidence that the agreement had reference to the promissory note in question, that it was a sufficient recognition of a subsisting demand to take it out of the operation of the statute. But was this, after all, anything more than a proper conclusion as to the legal effect and operation of the instrument as an acknowledgment? How what is the meaning of the agreement ? I cannot concur in the statement of the counsel on the other side, that the object of it was simply to exclude the promissory note from the consideration of the arbitrators in the case they were then about to try; and upon its own terms it can fairly receive no such construction. It unequivocally admits first, the existence of a note corresponding with this in the names of the maker, the payee and the indorsee, and in date; and in the second place, that there was a balance due upon it as a present subsisting demand, for it speaks of credits, or payments upon it. And why proceed to add as it does, that neither the note, or the credits on it, should be considered by the arbitrators, if it was merely intended to exclude the matter from their consideration ? Kb, the object of this was, whilst it admitted the existence of the note as a subsisting demand, subject to any payments, or credits on it, and by inference and implication necessarily, that there was some balance due upon it, but that in the amicable action, neither the plaintiff should avail himself of the note, or the defendant of the payments on it; and it would make both parties stultify themselves to suppose that they would refer to the matter in such terms, without admitting and meaning to admit, that such a note, with credits upon it, actually existed. And if so, then, upon the authorities cited on the other side, it clearly took the case out of the operation of the statute, and the Court was right in so charging the jury.
    The courts in this State have always held, that any unqualified admission of the debt as a subsisting demand, would, without any promise, either express or implied to pay it, remove the bar of the statute, and the principle has been ruled and settled in England likewise. 1 Harr. Rep. 109; 3 Ibid. 528; 4 Ibid. 368; 5 Ibid. 380; 1 Ld. Raym. 419; 2 Saund. Pl. & Ev. 647; 2 Greenl. Ev., secs. 440, 441; 16 East, 420; 1 Harr. & Gill, 204.
    
      Robinson replied.
   Harrington, Ch.,

delivered the opinion of the Court.

It was decided by this Court, in Newlin v. Duncan, 1 Harr. Rep. 207, in conformity with the uniform decisions and practice, that an acknowledgment of a debt as a subsisting demand will take it out of the act of limitations, without an express promise to pay it. There has been no vacillation in the courts on this principle, but some conflict in its application to the facts in each case. In Waples v. Layton & Sipple, 3 Harr. Rep. 509, where the defendant, Waples, neither denied nor admitted the debt in terms, but remarked that there were other persons of his name in the county, the Court said there was nothing which they would leave to a jury. They would leave nothing to the jury, unless an acknowledgment of a subsisting debt might be fairly drawn from it. And yet, in Black's Exrs. v. Reybold, 3 Harr. Rep. 528, the jury was allowed to infer such an acknowledgment from á very equivocal letter of the defendant, speaking of the “ claim,” and expressing the hope that when they should talk the matters over they would be able to settle the business satisfactory to both parties.” These are extreme cases. Yet the principle seems to require that the acknowledgment should be of a subsisting or existing debt, and recognizing an obligation to pay it—a debt originally just and still due. 2 Greenl. Ev., sec. 441. And to properly value the force of such admissions, the circumstances under which they are made may be considered. The circumstances under which what is claimed to be an admission in this case was made are these: The parties were before referees in- an amicable action with reference to a claim by Woolsey Burton, in a representative character, against Thomas Robinson, and the object of the written agreement seems to have been to show that the note referred to was not in any way to he considered in this reference—a precaution which was quite unnecessary, as it would not have been considered, and was not within the submission. But with reference to its force as an admission of indebtedness, it was proper that it should have been left to the jury to say, not merely whether it referred to the note on which this action is brought, but whether it recognized that note, or any portion of it, as yet due. In that respect we think the ruling of the Court, as set out in the exceptions, was too narrow, as they only left it to the jury to determine whether the agreement had reference do the note, and not whether it amounted to a recognition of the note as a subsisting or existing debt. We think this was error, and that for this reason the judgment should be reversed, and the case remanded to the court below.

Judgment reversed.  