
    Executor Glenn, vs. Joseph M'Cullough.
    
      Defendant, maker of a promissoory note, said UIgave the note, but it was for rotten tobacco, and I will never pay it; but I will not plead the statute, of limitations:” Held a,"sufficient ac-knowledgement io-taka the note out of the operation of the statute.
    
    The action was brought on a promissory note given for tobacco. The defences relied on were, that the tobacco was worthless, and the statute of limitations. The following expression of defendant was relied on to take the ease out of the statute; — {;I gave the note, but it was given for rotten tobacco and I will never pay it; but I will not plead the statute of limitations.” His honor overruled a motion for a non-suit, and under his charge, tlic jury found for plaintiff.
    A motion was now made for a non-suit—
    Because some promise, either express or implied, is necessary, to prevent the operation of the statute, and there was none in this case.
    A motion was also made for-a new trial—
    Because his honor erred, in charging the jury, that defendant was entitled to no benefit from bis declaration that die tobacco was rotten; although it was a part of the same conversation above referred to.
    
      Thompson, for motion,
    
    contended that there should be some promise, within four years, take a case out of the statute ■of limitations, and referred to Lawrence vs. Hopkins, 13 Johns* 288. If an admission of the debt be made, but with words ■denying the plaintiff’s right to recover, no inference can arise of a promise express or implied. The admission can only be construed as,evidence of a pr-omiso; but the express refusal to pay, and denial of the right to recover, exclude any such implication. Sands vs. Gelston, 15 Johns. 518; Danforth vs. Culver, 11 Johns. 140. The promise not to plead the statute of limitations is not enough. It is a new-and substantive .pro5-mise for which there was no consideration; and not competent,for the purpose of reviving a former promise.
    
      Irby, contra,
    
    thought this case had been already decided. It was formerly before this court. - The court then said the words were sufficient to take the case out of the statute; but the pleádings were wrong, and the case was sent hack- on the ground to be • seen in the case of Glen vs. Ml Cullough. The words in this case differ from those in the cases quoted from Johnson. Where a party admits Jiis signature to a note, but says he has paid it, he affirms the very fact of which the statute raises the presumption. In other instances, he is bound to prove the truth of all words accompanying his admission, denying the right to recow-£i. Dean vs. Pitts, 10 Johns. 35.
   The opinion of the court was delivered by

Mr. Justice Richardson.

It.is now well settled that an acknowledgement of a debt is sufficient to take it out of the statute of limitations, though there has been no new promise. 12 Yin. 192; 2 Sand. 64, note; 11 Johns. 146,

In the case before us, the defendant plainly acknowledged the note to be his, which takes it out of the statute; but said he would not pay it, because given for rotten tobacco, and yet that he would not plead the statute. Here then he takes upon himself the burthen of shewing a want of consideration, al’ter acknowledging the debt. It is, in my opinion, precisely like the case of Dean vs. Pitts, 10 Johns. 35, where the maker of a note admitted it to be his, but said he would make it appear that it had been paid; which was held to cast upon-him the necessity of proving payment. The motion is refused.  