
    Henry Gardner versus Frederic Tudor.
    The defendant in an action upon a promissory note said “ he supposed that the note was paid by the land mortgaged as collateral, that he was willing to do what was right, that he should be willing to make some small additional payment, for the purpose of settling the business, but if the plaintiff thought proper to sue, without taking the land, he should resist the suit.” Held, that this did not take the demand out of the statute of limitations, although it was proved, that the value of the land was much less than the amount due on the note.
    Assumpsit on a promissory note, dated August 31, 1813, for 1100 dollars, signed by the defendant, payable to one Kettell, or his order, and by him indorsed to the plaintiff.
    The defendant pleaded the general issue, which was joined ; also non assumpsit infra sex annos, and actio non accrevit infra sex annos; to which the plaintiff replied a new promise within six years, and that the action did accrue within six years ; and issues were joined on these replications.
    At the trial, before Wilde J., the plaintiff produced a mortgage deed, of the same date with the note, from a sister of the defendant, to Kettell, conveying certain land to secure the payment of the note ; and an assignment of the mortgage to the plaintiff, dated January 12, 1814. The mortgage was foreclosed by the plaintiff on September 1, 1818. The mortgager conveyed her interest in the land to the defendant, by deed dated November 11, 1813.
    To take the case out of the statute of limitations, the plain tiff produced one Lewis as a witness, who testified that he presented the note to the defendant for payment on Decernher S, 1826. The defendant observed, that he supposed the note had been paid by the land mortgaged as collateral security. The witness answered, that he had understood the land was considered of less value than the note, and that possession had not been taken, and for that reason payment was required upon the note. The defendant replied, that he believed that the law (which he considered to be unjust) required the promisor of a note to make good the deficiency, if the land mortgaged proved to be of less value than the amount of the note ; that the witness might say to the plaintiff, that he (Tudor) wished the business settled, and was willing to do what was right; that he considered that the land was given in payment of the note, as he was then a bankrupt; but that he should be willing to make some small additional payment, for the purpose of settling the business without having recourse to law ; but if the plaintiff thought proper to sue, without taking the land, he should resist the suit; and if possession had not been taken of the land, he considered.it a damage to the plaintiff and himself. At a subsequent interview, the defendant told the witness, that he could not make any propositions to the plaintiff for settling the demand, but should be glad to have a proposition from him.
    
      March 28th
    
    The jury were instructed to find a verdict for the plaintiff upon the several issues, and, in assessing damages, to deduct the value of the land at the time of the foreclosure; and a verdict was returned for the plaintiff for 1834 dollars 93 cents, subject to the opinion of the Court upon the facts above stated.
    
      Shaw and Adán, for the plaintiff.
    An acknowledgment of indebtedness is sufficient to take the demand out of the statute of limitations. 1 Stark, on Ev. 891, 892, 895, and the cases there cited; Frost v. Bengough, 1 Bingh. 266; Johnson v. Beardslee, 15 Johns. R. 4; Buswell v. Roby, 3 New Hamp R. 467; Halliday v. Ward, 3 Campb. 32; Mountstephen v. Brooke, 3 Barn. & Ald. 141; Whitney v. Bigelow, 4 Pick. 110. The remark of the defendant, that he supposed the note had been paid by the land mortgaged as collateral security, is immaterial if used in his defence. Leaper v. Tatton, 16 East, 419; Douthwaite v. Tibbut, 5 Maule & Selw. 75 , 
      Colledge v. Horn, 3 Bingh. 119; Dean v. Pifte, 10 Johns. R. 35. But it was proved at the trial that there was no ground for the supposition, and thus the case is brought within the rule laid down by Gibbs C. J. in Hellings v Shaw, 7 Taunt. 608, that where the defendant has said that the debt has been discharged by a particular means, to which he refers with precision, so that the court can say that it has not been discharged in any other mode, if the plaintiff disproves that mode, he will recover, by striking from under the defendant the only ground on which he relies. Partington v. Butcher, 6 Esp. R. 66; Beale v. Nind, 4 Barn. & Ald. 568; 2 Stark, on Evid. 893, 894, and cases there cited ; Bangs v. Hall, 2 Pick. 368. When the witness observed, that the land was of less value than the note, the defendant instantly stated the liability of every mortgager in such a case, and added, “ I am willing to do what is right and wish this business to be settled ; ” the defendant’s own inference from the premises he had laid down, was, that he was a mortgager, and that every mortgager was liable for the difference between the. amount of the debt and the value of the land. This was an acknowledgment of indebtedness and a promise to pay. ■ He again expressly stated his legal liability for that difference, in the last remark in the first conversation. Saying that he was willing to do what was right and wished the business settled, is alone sufficient to take the case out of the statute. Frost v. Bengough, 1 Bingh. 266; Clark v. Hougham, 2 Barn. & Cressw. 149; Gibbons v. M'Casland, 1 Barn. & Ald. 690; Galway v. Barrymore, 1 Dickens, 163; Halliday v. Ward, 3 Campb. 32; Colledge v. Horn, 3 Bingh. 119. The remark, that if the plaintiff thought proper to sue, without taking the land, the defendant would resist the suit, is a conditional promise, that he would not contest the claim, if the plaintiff’ would allow the value of the land. This brings the case within the letter of the law as ruled in Whitney v. Bigelow, and Bangs v. Hall. The defendant’s observation, that he could not make any propositions to the plaintiff for settling this demand, but should be happy to have a proposition from .him, was an admission that the defendant was under an existing liability to the plaintiff.
    
      Nichols, for the defendant,
    cited Stanton v. Stanton, 2 New Hamp. R. 426; Parley v. Little, 3 Greenl. 97; Sands v Gelston, 15 Johns. R. 511; Tanner v. Smart, 6 Barn. & Cressw. 603; Porter v. Hill, 4 Greenl. 41; Marshall v. Dal liber, 5 Connect. R. 480; Bailey v. Bailey, 14 Serg. & Rawle, 195; Bangs v. Hall, ubi sup.; Clementson v. Williams, 8 Cranch, 72; Wetzell v Bussard, 11 Wheat. 310; Bell v. Morrison, 1 Peters’s Sup. Ct. Rep. 351; Miller v. Caldwell, 3 Dowl. & Ryl. 267; Bickwell v. Keppel, 4 Bos. & Pul. 20; Lawrence v. Hopkins, 13 Johns. R. 288; Danforth v. Culver, 11 Johns. R. 146; A'Court v. Cross, 3 Bingh. 329.
    
      June 27th.
    
   Putnam J.

delivered the opinion of the Court. The general question is, whether the evidence is sufficient to prove a promise to pay, within six years.

In the absence of an express promise, it is necessary that the plaintiff should prove that the defendant has made an unqualified acknowledgment of the debt within six years, or that he has made a promise to pay upon a condition which has been performed. The law would raise a promise in the first case ; and the performance of the condition, in the second case, would have the effect of an express promise. The authorities and principles relating to this subject were examined with some care in the case of Bangs v. Hall, 2 Pick. 368. Our attention has been repeatedly called to this subject since that decision, and upon a further examination of the cases cited at bar, we do not perceive any reason to vary from it.

We proceed directly to the question, and apply the facts m the case at bar to the recognised doctrine of the case of Bangs v. Hall.

When the note was presented by the witness to the defendant, his first rema-k was, that “he supposed the note had been paid by the land mortgaged as collateral.” The witness then stated the rule of law which subjects the debtor to pay the balance of the debt, after deducting the value of the property mortgaged. The defendant’s answer implied that he was aware of that law, hut he thought it was unjust. He considers that it would be unjust to enforce that rule of law against him We must in this part of the case recollect, that the defendant then had a perfect protection against the plaintiff’s claim, and an undoubted right to prescribe his own terms and rules, which are not to be enlarged or varied by the Court. The defendant proceeds to say, that he considered the land tv have been given in payment of the note ; assigning as a reason, that he was then a bankrupt. This land was conveyed by the deed of his sister Whether it was a volunteering conveyance, or for consideration paid to her by the defendant, does not appear, and perhaps is not material. The defendant believed it was “given in payment.” He proceeds to say, however, that he should be willing to do what was right, and immediately explains his own idea of what was right. “ He should be willing to make some small additional payment to the land, for the- purpose of having the business settled without having recourse to law.” Now the plaintiff is not content with that, but would have the Court infer, that the defendant, oy that qualified declaration, was willing to pay the whole balance. It seems to us that such construction would greatly extend his meaning. He speaks of making only some small additional payment; and that proposal was made, not on the ground of its being a just claim or debt, but for the purpose of avoiding litigation. He contemplated a small sum, which perhaps might be less than the expense of his defence. The plaintiff’ would infer from it, a promise to pay the whole, which would draw after it the expense of the suit. But the defendant seems to exclude this conclusion by his next remark, “ that if the plaintiff" thought proper to sue without taking the land, he should resist the suit.” We understand the defendant to mean, that unless the plaintiff would take the land in payment, as he understood it was originally convened, he would resist the suit. We are not now to consider whether the defendant has conducted himself with propriety and liberal! ty towards the plaintiff or not. He had the right of judging upon that subject. It was for him to determine, whether he would waive the provision of the statute or not. And upon a careful review of the whole matter, we are all satisfied that he has not precluded himself from its protection. There is no unqualified acknowledgment of an existing debt, from which the law will raise a promise to pay.; nor any prom ise to pay upon a condition which has been performed. The proposal was not (as the plaintiff contends) to pay the bal anee of the note if the plaintiff would allow the value of 'he land, but to pay some small sum in addition to the value of the land, to prevent a lawsuit. That proposal was not accepted by the plaintiff; but instead of that, he seeks to recover at law, and the defendant, according to his declaration, may stand upon his legal rights, in the same manner as if that proposal had not been made.

The judgment of the Court must therefore be, that the verdict, which was taken for the plaintiff, be amended and entered up as a verdict for the defendant, upon the issues touching the statute of limitations. 
      
       See Bailey v. Crane, 21 Pick. 324; Sigourney v. Drury, 14 Pick. 390.
     
      
       See Morrell v. Frith, 8 Carr. & Payne, 246; Dodson v. Mackey, 4 Nev & Man 327; Linsell v. Bonsor, 2 Bingh. New Cas 241; Dabbs v. Humphries, 10 Bingh. 446; Gilson v. Bagshott, 5 Carr, & Payne, 209, note ; Exeter Bank v. Sullivan, 6 N. Hamp. R. 124; Russell v. Copp, 5 N. Hamp. R 154; Bangs v Hall, 2 Pick. (2d. edit.) 377, 378, 379, notes and cases, cited Sigourney v. Drury, 14 Pick. 390, 391; Bailey v. Crane, 21 Pick. 323; Thayer v Mills, 14 Maine R. (2 Shepley,) 300; Lombard v. Pease, id. 349; Brackett v Mountfort, 3 Fairfield, 72; Revised Stat. c. 120, § 13; Gallagher v Milligan, 3 Pennsylv. R. 177; Church v. Fetcrow, 2 Pennsylv. R. 301; Oakes t. Mitchell, 15 Maine R. (3 Shepley,) 360.
     