
    Thompson Baxter, Administrator, versus Stephen Penniman.
    An admission within six years of a promise or contract as undischarged, which would otherwise be barred by the statute of limitations, takes such promise or contract out of the statute. — And if such admission be made to an executor or administrator, there needs no special count,to be made in such case.
    This was an action of assumpsit. The declaration contained tluee counts on three several promissory notes, made by the defendant to Hannah Beals, the plaintiff’s intestate, who died within six years before the commencement of the action. The defendant pleaded three several pleas, viz., 1. The general issue. 2. That lie never promised within six years before the action was commenced. 3. That the cause of action did not accrue at any time within six years before the action was commenced.
    The several pleas were traversed, and issues to the country joined upon them respectively.
    On the trial of these issues before the chief justice, at an adjournment of'the last October term in this county, the plaintiff produced no evidence to support the first count, and gave it up. On the two other counts he produced the notes declared on, and the signatures by the defendant were admitted ; one note bearing date September 19th, 1795, and the other bearing date January 20th, 1801. The writ was dated November 2d, 1808.
    To take these notes out of the statute of limitations, it was proved by the testimony of a Mr. King, with whom * the notes were left for collection by the plaintiff after the death of his intestate, that the defendant acknowledged that the notes were justly due, and ought to be paid. The admission of this testimony was objected to by the defendant’s counsel; but that the question might be settled by the whole Court, the chief justice overruled the objection ; and thereupon the jury found a verdict for the defendant on the first count, and for the plaintiff on the second and third counts, subject to the opinion of the court upon the admissibility of King’s testimony.
    If the Court should be of opinion that the testimony of King was improperly admitted, the verdict was to be set aside, and a new trial granted ; otherwise the verdict was to stand, and judgment to be entered accordingly.
   The action stood continued nisi for the consideration of this point; and at an adjournment of the last March term in Suffolk, (present Parsons, C. J., Sewall and Parker, Justices,) the opinion of the court was declared to the following effect: —

• When the parties are living, an admission of a promise or contract as undischarged within six years before action brought, takes it out of the statute of limitations. For the same reason, such an admission made by or to an executor or administrator after the six years, ought to be considered as having the same effect. The English practice requires in this latter case a special count. But this practice has no bearing upon the merits, and it is incomenient, as tending to produce prolixity of pleading.'

The sound principle which ought to govern in the construction of the statute is, that a presumption arises, that the defendant, from the lapse of time, has lost the evidence which would have availed him in his defence, if seasonably called upon for payment. But when this presumption is rebutted by an acknowledgment of the defendant within six years, the contract is not within the intent of the statute,

Judgment on the verdict. 
      
      
        Carth. 470. — 2 D. & E. 760, Lloyd vs. Mound.
      
     
      
      
        Salk. 28, Dean vs. Crane.—[Sarell vs. Wine, 3 East, 409, 6th Eng. ed.— Willes, 29.-2 Chitt 68.—Ed.]
     
      
      .) [ Whitney vs. Bigelow, 4 Pick. 110.— Bangs vs. Hall, 2 Pick. 368.—Eu.]
     