
    [Lancaster,
    May 16, 1825.]
    ECKERT against WILSON.
    IN ERROR.
    An acknowledgment to take the case out of the statute of limitations must be unqualified : if the defendant, when he admitted the items of the plaintiff’s demand, still claimed a balance due him after settlement of all accounts, that is not sufficient to take the case out of the statute.
    Where there is no usage nor precise time of payment, no account rendered nor demand made, it is for the jury to give interest by way of damages for the delay, at their discretion, under all the circumstances of the case.
    This was a writ of error to the Court of Common Pleas of Lan~ caster county, in an action on the case for goods sold and delivered, money lent, money paid, laid out, and expended, and money had and received, brought by Jacob Eckert, the plaintiff below and defendant in error, against the plaintiff in error, John Wilson, in which there was a verdict for the plaintiff below for seven hundred dollars.
    The defendant pleaded non assumpsit, non assumpsit infra sex annos, payment, and set-off. Replication, non solvit, no set-off, and the statute of limitations, and issues were joined.
    The proof in support of the plaintiff’s claim, which was founded on book account, rested principally upon the testimony of Mrs. Ring wait, who proved, that the defendant Wilson came to the house of her father (the plaintiff,) in March, 1814, with an account against the plaintiff of two hundred aud fourteen pounds, for articles furnished in 179S, 1803, and 1805, and demanded the money. Her father was not at home, but her mother told him she thought there had been a settlement between them. 'He said there had been, but he had balanced the account, and that amount was still coming to him. The witness was then directed by her mother to get her father’s book, for perhaps the defendant had not the whole of the plaintiff’s account. The witness then took the book, and read over to the defendant the items charged against him in the plaintiffs book, (amounting to the sum of one hundred and twenty-one pounds and twelve shillings, for whiefy with interest, this suit was brought.) The first item was a charge of thirty-seven pounds and ten shillings, for one hundred b'ushels of rye delivered to the defendant; the defendant said he never got that much at once: he had got rye, but not that much at once: he got it at twice, to the best of his knowledge. On the second item being read, viz. “ Cash sent by Bob Waters, one hundred and sixty dollars, sixty pounds,” the mother said to the defendant, “ Jacob, you remember getting that,” and he said he did. When the next item, — “thirty-six bushels of oats, four pounds and ten shillings,” was read, the defendant did not deny that: he said nothing either for or against it. So with respect to the next item, — - 
      “ fifty bushels of lime, two pounds and ten shillings.” As to the next item, — “ four thousand feet of pine boards, fifteen pounds,” he said he got boards, but not that many. When the last item, — . “ a wagon, two pounds and two shillings,” was read to him,, he said, “D — h the old wagon; I only bought it for the iron.” The witness said, she could not remember on what account the defendant claimed the two hundred and fourteen pounds, though bo had an account of the articles on which he claimed it. The plaintiff then showed a recovery against him by the defendant in August, 1814, by default for the sum of two hundred and thirty-six pounds, due on a single bill, with interest.
    The defendant gave in evidence the record of two judgments, recovered before a justice of the peace, on the 25th of September, 1797, by him against Edward Boyle; one for twelve pounds and nineteen shillings, and the other for twelve pounds and one shilling, and offered to prove, “ that John Wilson, the plaintiff, assumed to pay the amount of the said judgments to Jacob Eckert, the defendant, if Edward Boyle would agree to work for the said Wilson fifteen months; that the said Boyle did agree to work, and actually did work for the said Wilson fifteen months, in pursuance of the said agreement, and that the said Wilson assumed the payment of the said judgments to the said Eckert in consideration thereof.” To the admission of this testimony the plaintiff objected, and the court sustained the objection and overruled the evidence; and the defendant excepted. The defendant was. then examined, as to these judgments being laid before the arbitrators, (the ground of the objection being that they had been withheld from the arbitrators, before whom this case had been,) and the same evidence was again offered; but it was again rejected, and an exception taken. This was the first bill of exceptions.
    Second bill. The defendant then offered to prove, in addition to the testimony already given to the court by Jacob Eckert, by indifferent testimony, that parol testimony was given to the arbitrators, to prove that John Wilson assumed to pay Jacob Eckert, in the year 1797, the sum of twenty-five pounds, the amount of two judgments, which the said Eckert had recovered against Edward Boyle, before David Watson, Esq., provided Edward Boyle would work with him fifteen months. That Edward Boyle then being present with Wilson and Eckert, agreed to work with Wilson fifteen months, that he did so, and that Wilson assumed the payment of the twenty-five pounds.” The plaintiff objected to the admission of the said testimony, and the court overruled it; and the defendant excepted.
    Third bill. The defendant then offered to prove, that John Wilson assumed to pay Jacob Eckert, in the year 1797, the sum of twenty-five pounds, the amount of two judgments, which the said Eckert had recovered against Edward Boyle, before David Watson, Esq., provided Edward Boyle would work with him fifteen months. That Edward Boyle, then being present with Wilson and Eckert, agreed to work with Wilson fifteen months; that he did so, and that Wilson assumed the payment of the twenty-five pounds to Jacob Eckert in consideration thereof.
    Fourth bill. The counsel for the defendant then offered to prove, that in the fall of the year 1802, the plaintiff came to the house of Jacob Ecke?'t, the defendant, one evening on his way to Lancastér, and staid one night; that the .next morning the plaintiff, Mr. Wilson, asked the defendant for the loan of some money for a few days, and that the defendant gave Mr. Wilson, the plaintiff, twenty dollars, and he went away after he got the money. To the admission of which testimony, the counsel for the plaintiff objected, and the court, after argument, rejected the same.
    The court charged, among other things, as follows:
    “If the declarations made by Jacob Eckert, in the presence of Mary llingwalt, are testimony to charge him, they are also testimony in his favour. The whole must be taken together — therefore his declaration, that he had settled the accounts between Wilson and himself, according to the account which he had with him, and that there was a balance due him of two hundred and fourteen pounds, must be taken together with his alleged admission. It is evidence of his making the demand, and not that that sum was due. The account of Jacob Eckert, and the demand of the amount of it, can have no other operation in this cause, than as it may relate to the question of his acknowledgment of the debt, and to show that he meant to make no such acknowledgment, — of the effect of this you will judge. We have not the account before us; • we have no proof of its contents, nor do we know of what items it consisted.
    “ We cannot therefore instruct you, as we are requested by the defendant to instruct you, that, taking them together, and even supposing that none of the items of John Wilson's book account had been included by Jacob Eckert in his settlement, the amount of the plaintiff’s demand would be only twenty-seven pounds and twelve shillings, which would be ascertained by deducting the one hundred and twenty pounds, the amount of John Wilson’s single bill to Jacob Eckert, from the two hundred and fourteen pounds, and deducting the balance from the amount of John Wilson's book account.
    “Now, with respect to the acknowledgment said to be made by the defendant: what acknowledgment, when proved, shall take the case out of the statute of limitations, is a question of law for the court, — whether any, and what acknowledgments are made, is a question of fact for you to decide. The debt claimed in this case is barred, except so far as the debt has been taken out of the statute by such acknowledgments of the defendant, as are not inconsistent with a promise to pay. As the proof of the several articles of the account is founded on his acknowledgments, he is bound so far as he has made these acknowledgments, and no further. So far as the testimony goes to prove that acknowledgments have been made by the defendant not inconsistent with a promise to pay, it is a full answer to the plea of the statute of limitations, and he has no defence under it. And if the jury believe Mrs. Ringwalt’s testimony, the claim on the part of the plaintiff, so far as she has proved it, is supported and established.
    “ With respect to interest, it is the opinion of the court, that for So much of the debt as is established by the proof on the part of the plaintiff, interest is demandable from the time the original debt became due.”
    The defendant excepted to the charge of the court.
    The following errors were assigned:
    1. The court did not fully answer the second point submitted by the defendant, and so far as they have answered it, their answer is erroneous: they have also erred in charging the jury, “ that if they believed Mrs. Ringwalt’s testimony, the claim on the part of the plaintiff, so far as she has proved it, is supported and established.’7
    2. The court erred in charging the jury, “that the account of Jacob Eckert, and the demand of the amount of it, can have no other operation in this cause, than as it may relate to the question of his acknowledgment of the debt, and to show that he meant to make no such acknowledgment.” — “ It is evidence of his making the demand, and not that that sum was due ”
    3. The court erred in not answering the defendant’s first point fully in his favour, and in instructing the jury, that, “ with respect to interest, it is the opinion of the court, that so much of the debt as is established by the proof on the part of the plaintiff, interest is demandable from the time the original debt became due.”
    4. There is error in each of the defendant’s three first bills of exception.
    5. There is error in the defendant’s fom’tb bill of exceptions.
    The case was argued by Buchanan for the plaintiff in error.
    
      Slayniaker and Hopkins, contra.
   The opinion of the court was delivered by

DuNCAN, J.

The serious question is stated by the counsel for the plaintiff in error to be, whether tíre testimony of Mary Ring-wait, took the case out of the statute of limitations, and the rejection of all evidence as to set-off.

It may be proper to observe, that undoubtedly the whole conversation at that time of the alleged acknowledgment should have been received; for it tended to qualify the acknowledgment, and so far from being an admission of any debt, was a demand of a balance; and as to the evidence of set-off, perhaps, as this would be a set-off affected by the act of limitations, in that point of view it was not to be considered; but in such stale cases, as both demands were, it was very strong evidence to be submitted to a jury, that the accounts between these persons had been settled. For one great object of this wise provision of limitation is, that after the lapse of six years they should be considered, in point of law, as extinguished. That was the period fixed by the legislature, when the legal bar arises, which is not from presumption of payment from any evidence, but because the parties could not be prepared with witnesses to meet these obsolete demands.

Judges in England, as well as in our own country, have regretted the departure from these wholesome enactments, and are retracing their steps, to restore the real intention of their framers.

The general doctrine of the Court of Common Pleas, as to the acknowledgment being sufficient to take the case out of the statute, may be right. Without consuming time by a critical examination of the decisions, it is sufficient to state what is the modern doctrine on this subject, — .which is the true doctrine, and which restores a wise act, but which a relaxed construction had nearly repealed. The acknowledgment must be an unqualified one, of a present existing debt, to raise a valid promise to pay; and if it be qualified,' in a way to repel the presumption of a promise to pay, it is not evidence of a promise. Roosevelt v. Waite, 6 Johns. Ch. 290, and Clementson v. Williams, 8 Cranch, 72. In the last case, Chief Justice Marshall said, (speaking of the English decisions,) they had gone as far as they ought to be carried, that the statute was entitled to the same respect as any other statute, and’ought not to be explained away.

Courts are returning fast to the plain letter and obvious meaning of the enactment, and when the counsel in an argument go back to some English decisions which are in contradiction to the statute, we may be permitted to answer them by saying, that they are not binding authorities here, when even in their own country their authority has been questioned and denied, and where their courts are now conforming to decisions first made in our own courts. In England it was held, that a devise in trust, or charge on lands for the payment of debts, revived those barred by the statute of limitations. But in Smith v. Porter, 1 Binn. 209, it was decided, that a debt barred by the act of limitations, is not revived hy a clause in the will of the debtor, directing all his just debts to be paid; and this principle now obtains in the courts of Westminster Hall. It does not include debts barred by the act of limitations, but only subsisting debts not barred at the testator’s death. It is altogether a mistake, to suppose that the bare acknowledgment amounts to a revival of the debt: it is the evidence of a new promise. Jones v. Moore, 5 Binn. 373. It is not 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. Now the evidence of Mary Ringwalt was, that Eckert claimed to be due him in account, two hundred and fourteen pounds, and demanded that money; and when Wilson’s wife said she thought there was a settlement between him and her husband, he answered, there was, but this was the balance still coming. Now, this was totally inconsistent with a promise to pay; for it is a sound doctrine, that if a man says, “ I have a set-off against your claim,5’ this will not take a case out of the statute. It was here an unqualified negative of any debt due by Eckert to Wilson — the balance on settlement, he says, pf two hundred and fourteen pounds, which I came to demand.

The answer of the court did not meet the question of the plaintiff in error; for though it is a response to the question, yet in the application of it to the cause trying, the court say, But if the jury believed Mrs. Ringwalt’s testimony, the claim on the part of the plaintiff, so far as she has proved it, is supportéd and established.55 Now the court say, whether the acknowledgment is sufficient is a question of law, and they instruct the jury, that if thoy believed Mrs. Ringwalt’s testimony, the claim is established and supported; that is, that it stands unaffected by the statute of limitations. In this the court erred; for all that passed in the conversation stated by Mrs. Ringwalt, so far from an acknowledgment of a subsisting debt still due by him, denies it. He declared it was all settled in account, and the balance still due to him on that settlement was two hundred and fourteen pounds, which he came to demand payment of.

I will further notice, that the calling by Wilson on Eckert for the loan of twenty dollars, was altogether inconsistent with the idea of indebtedness. It was at least evidence to go to the jury to show unindebtedness.

These observations meet, though not in a regular series, the points made in the argument. If there are any which either party think are material, and have escaped notice, they will be answered. With respect to interest, where there is no usage, — no precise time of payment fixed, — no account rendered, or demand made, — it is not usual for the court to direct interest in the name of interest, but to leave it to the jury, under all the circumstances, to give or refuse damages for the unjust detention. There is, however, a circumstance in this case, that would justify the court in strongly recommending the allowance of interest, and that is, that Eckert recovered interest from Wilson, running on till the same time on his debt or specialty.

Judgment reversed, and a venire facias de novo awarded.  