
    Gaylord vs. Van Loan.
    
      Where, from the evidence relied on for a new promise to save the statute of limitations, it appears that the 'defendant denied, all indebtedness to the plaintiff, nothing that was said by the defendant can be construed into a new promise or recognition of indebtedness, from which a promise may be implied.
    A promissory note, expressing no time when payable, is in judgment of law payable on demand, and draws interest from its date.
    An agreement not to plead the statute, it seems, may be replied in answer to a plea of the statute of limitations, where such agreement is made previous to the attaching of the statute.
    This was an action of assumpsit, tried at the Columbia circuit in June, 1833. The plaintiff declared on three promissory notes—two dated 1st January, 1820, one for $73,76, and the other for $48,27, and the third dated 12th May, 1820, for $170,04—given by the defendant to the plaintiff without specifying when payable. The declaration also contained the common money counts. The defendant pleaded the general issue, the statute of limitations, and an insolvent discharge granted 17th March,1828. The plaintiff replied to the second plea a new promise, and to the .third that the discharge was obtained by fraud, giving specifications. On the trial, the notes declared on were produced. An attorney testified that the notes in question and certain books of account were left by the plaintiff with him for collection, and thatprevious to 1st April, 1826, and not more than ten days before that day, the plaintiff and defendant met at his office, when the plaintiff claimed a large balance to be due to him from the defendant. The defendant denied that he oioed the plaintiff any thing. The attorney told him that the demands must be • sued, unless they were renewed; to which he answered that he would not avail himself of the statute, and a suit need not be • brought on that account. The capias in this cause was issued 17th March,1832. The defendant proved his discharge. Whereupon the insolvent papers of the defendant, viz. the account of creditors, &c. were produced by the plaintiff, by which it appeared that the defendant had omitted to include the plaintiff among his creditors, and on the contrary, had expressly stated that he was not indebted to him, but that the plaintiff was his debtor. Evidence as to the state of the accounts between the parties was given on both sides. The A circuit judge charged the jury that it was for them to say whether a conditional promise had not been established— whether what was said by the defendant, as testified to by the attorney, was not tantamount to saying, “ If you prove I owe you any thing, I will pay youand instructed them that if such had been the language of the defendant, it would avoid the statute of limitations, or prevent its being a bar to the plaintiff’s recovery. He further instructed the jury, that if the defendant actually owed the plaintiff at the time he presented his petition for a discharge and his account of creditors, and knew the fact, his omission to include the plaintiff in such account was a fraud, which would avoid the discharge. He also told them that if they should find for the plaintiff, interest was allowable on the notes only from the time of demand of payment, or suit brought. The jury found a verdict for the plaintiff for $403,55. The defendant moves for a new trial.
    
      O. Bushnell, for the defendant,
    insisted that the declaration of the defendant that he would not avail himself of the statute, could not be tortured into a promise to pay, nor into an acknowledgment of a subsisting indebtedness, especially when accompanied, as it was, with an utter denial of owing the plaintiff any thing; and that therefore the judge erred in his instruction to the jury on the point of a new promise. He further contended that the plaintiff could not, under the pleadings in the cause, avail himself of the defendant’s promise not to plead the statute of limitations; they contain no averment in respect to it, nor is there any issue joined upon the fact. If the plaintiff can enforce such a promise, it can only be by an action on the promise, averring a breach.
    
      A. L. Jordan, for the plaintiff.
    What was said by the defendant amounted to a conditional promise—“ prove your debt and I will pay it”—or what he said has no meaning Whether the words used would bear such construction was properly submitted to the jury. A conditional promise is sufficient to take a case out of the statute. 3 Wendell, 190. 2 Pick. 368. 11 Wheaton, 309. 1 Peters, 362. The condition in this case was performed by proof of the indebtedness.
   By the Court,

Nelson, J.

The circuit judge erred as to the time when the notes became due. In legal effect they were payable immediately, and of course drew interest from their respective dates. Chitty on Bills, 60. 8 Johns. R. 189. 13 Wendell, 208. This error, however, was against the plaintiff, and affords no ground for a new trial. But the charge was incorrect in regard to the statute of limitations. There was no new promise by the defendant, nor foundation upon which to rest the presumption of a new promise. The opinions delivered by the chief justice, in the case of Allen v. Webster and Stafford v. Richardson, during the present term, are conclusive upon this part of the case. It would be worse than useless again to go over the argument.

Two of the notes were barred when the defendant agreed that he would not avail himself of the statute. As to those notes, it cannot be said that the agreement operated as a fraud upon the plaintiff, by inducing a delay in the commencement of the suit until after the statute attached,; but it may well be said as to the third note, which was not due at the time of such agreement. Although we cannot, upon any consistent reasoning, infer a new promise to pay the notes from what was said by the defendant, taking the whole together, yet, as it respects the note not then barred, we do not say that the plaintiff is entirely remediless. The agreement not to plead the statute, as respects this note, operated as a fraud upon the plaintiff. Had it not been made, he could have prevented the effect of the statute by commencing his suit. By pleading the statute, the defendant is guilty of bad faith, and, upon general principles, should be estopped from availing himself of that defence. No one ought to be permitted to disregard his own deliberate, lawful agreement, to the injury of another. The principle which should debar the defendant from setting up the defence in this case is a familiar one ; the only difficulty is in the mode of its application. In the case of The Utica Ins. Co. v. Bloodgood, 4 Wendell, 652, the stipulation not to plead the statute was in writing, but its being in writing does not add any thing to its legal effect, unless it be under seal. It is of no greater efficacy or higher credit in court than an agreement resting in parol, when proved. Had it been under seal, there would have been no difficulty in replying it to the plea of the statute as a technical estoppel. 1 Chit. Pl. 515, 573. 2 id. 590. 1 Saund. 325, n. 4,257. Shelly v. Wright, Willes, 9. 18 Johns. R. 490. The facts in the case • under consideration operate in the nature of an estoppel in pais. 3 Co. Litt. 431,352, a. 5 Bacon’s Abr.428. 1 Gilb. Ev. 87. Mr. Starkie, vol. 2, p. 16, says, “If a representation be made of any fact with a view to influence the conduct of another, or to derive any advantage to the party, and which cannot afterwards be denied without a breach of good faith, such an admission will not only be evidence of the fact, but will usually preclude the party who has made it from insisting upon the contrary. It does not operate merely as a presumptive evidence of the actual truth of the fact, which must give way to positive proof of the contrary, but precludes and as it were es-tops the party, on grounds of policy, from repudiatingffiis own repesentation, and renders the actual truth of the feet immaterial.” A striking illustration of this principle is found in a case frequently adjudged—to wit,where a man has cohabited with a woman, and admitted and treated her in the face of the world as his wife, he shall not be afterwards permitted to set up, as a defence to a creditor who supplies her with goods, that she is not his wife. 2 Esp. R.637. 1 Camp. 245. 4 id. 215. 2 Starkie’s Ev. 18. Mr. Saunders,on Pl.& Ev.vol.l,p. 37, says, “There are two kinds of admissions—conclusive and inconclusive: conclusive admissions are those arising from matters of estoppel, technically so called—as admissions by records and specialties, or where the parties agree to make the admission as evidence, or where the admission is made with a view to benefit the party making it,or to prejudice the party to whom made.” See also 8 Wendell, 483. So a man is estopped from averring or proving his own fraud, which is a kindred principle to the one above stated.- The examples given by Coke, of estoppels in pais, are by livery, by entry, by acceptance of rent, &c. Now it is difficult to comprehend why a Pai'ty may not avail himself of matter that operates as a con-elusive estoppel in pais by way of pleading, as well as amere technical estoppel of record or deed. There is no distinction in principle or effect. The former constitutes a legal bar in the way of a plea, or answer by way of replication, and is just as decisive upon the rights of the parties, when established by proof, as the latter. A good replication may either conclude the defendant by matter of estoppel, may deny the truth of the matter alleged in the plea, may confess and avoid it, or may new assign, as the case may require. 1 Chitty’s Pl. 549,573, 575. 2 id. 592. 1 Sound. 257, 325, n. 4. Willes, 9. Here the defendant is effectually estopped by matter in pais, upon well settled legal principles, from availing himself of the statute in the case supposed.

In truth, the distinction, though we find it sometimes stated in general terms that the one is available only as evidence, while the other is by plea, does not appear to be very thoroughly determined. Baron Gilbert, on the Law of Evidence, p. 87, lays down the position, that if a defendant pleads livery and seizin (an act in pais) from the plaintiff, he cannot reply that the livery was conditional, without showing the deed, because the plaintiff is estopped from defeating his own livery by naked averment and parol evidence. In the case of Price v. Harwood, 3 Camp. 108, it was ruled, if a man whose name is William be asked before process is served whether it is not John, and he answers it is, that he cannot maintain trespass for what may be done under the process. If, in such a case, the defendant should appear and plead the misnomer in abatement, there cannot be a doubt it would be competent to reply the fact of his admission, and that, if proved, it would operate as a conclusive estoppel in pais. So to a plea of misnomer, the plaintiff may reply the recognizance of bail entered into for the defendant, though he be no party to it. Barely putting in the bail in the suit operates as an estoppel. 2 N. R. 453. If it be said that an estoppel by writing not under seal, or by parol admission, may be disproved and is not necessarily conclusive, it may be answered that admisssions of record, or by specialty, may also be rebutted. Duress, fraud, or illegality, may be replied to them. 3 T. R. 418. 2Wils. 344, 450. 1 Saund. Pl. Ev. 44. 1 P. Wms. 156, 220. 1 Comyn on Contr. 30. 19 Johns. R.311. A party is never estopped, if there has been any illegal transaction, fraud, or duress, to obtain the admission. Butter’s N. P. 298. 1 Saund Pl. Ev. 37. 3 T. R. 418. It does not appear that any question was made upon the pleadings in the case of Bloodgood v. The Utica Ins. Co. 4 Wendell, 652. To the plea of the statute of limitations, the plaintiff there replied a ratification of the original promise, and an agreement not to plead the statute. It seems to have been conceded by the counsel for the defendant, that he was estopped as respected the note, as it was only insisted the stipulation did not attach to the original indebtedness. There was no pretence of any evidence of a new promise, or ratification of the old one, in the case. Mr. Justice Sutherland, in delivering the opinion of the court, put the decision under the plea of the statute expressly upon the estoppel arising from the stipulation. It was obviously given to avoid this bar to the action, as the six years expired the 28th April, 1824, and it was executed by the defendant on the 26th of the same month. The renewal of the promise was out of the question, and could have constituted no answer to the plea, there being no proof to sustain it. The estoppel was exclusively relied upon. I confess I perceive no objection to such a replication in principle, nor can I distinguish it, in substance or good sense, from a pleading of the kind where the matter set up is more technical. The answer to the bar is conclusive in point of law, and has been frequently so decided in a court of law, when shewn by way of evidence. One of the best tests of good pleading is, whether the evidence sufficient to support it, when given on the trial, would constitute in point of law a bar to the action if a plea, or an answer to it if a replication. This replication comes entirely up to this test. Not only in conscience, but in law, the defendant cannot be allowed to set up his own breach of faith, or fraud, in order to derive an advantage for himself, to the injury of the person deceived by him. It would be giving him the fruits of his iniquity, and bidding a bounty upon treachery and fraud. It may be added, in this case, that there is no other practicable mode by which the plaintiff can avail himself of this legal answer to the bar of the statute, but by replying it. It would be incongruous and absurd to allow it to be given in evidence to support the issue of the new promise, or ratification of the old one. It tends to no such thing. It can operate only by way of estoppel, to compel the defendant to keep good faith with the plaintiff, when a breach of it directly operates to deceive and defraud him. A more summary remedy might be found in a motion to strike out the plea, as put in in violation of a positive agreement, to the injury of the plaintiff. This, however, would probably be a very unsatisfactory one. A man who would violate good faith, deliberately pledged to another, would be an unsafe adversary on a motion of that kind.

New trial granted.  