Opinion of the Court by
Justice Lockwood.
This was an action of assumpsit. The defendant below plead non assumpsit, and the statute of limitations. On the trial of this cause, after the plaintiff, Schwartz, had gone through with his testimony, the defendant moved the court to charge the jury that the testimony was insufficient, which instruction the court refused to give, and a bill of exceptions was tendered and signed, containing all the testimony given in the cause.
The testimony is very loose, confused and contradictory. After a careful perusal of it, the mind is left without any satisfactory conclusion as to the real merits of the case. The duty of the court, in a case thus situated is very difficult. We are, however, satisfied that injustice has been done, and that the cause ought to be presented to another jury.
In a recent case, decided in the supreme court of the United States, they were of opinion, that proof that defendant had promised to pay a debt barred by the statute of limitations, is insufficient, without evidence of the original consideration of the indebtedness. The promise to pay a debt barred by the statute, only removes the bar and leaves the case to be proved as if no statute of limitations had been pleaded. The evidence on this point is very defective. It is impossible to gather from the proof the precise nature of the original debt. Without some clear and distinct evidence of the existence of the original demand, it was the duty of the court to have sus tamed the defendant’s motion for a nonsuit, or given the instructions.
Eddy and Breese, for plaintiff in error.
Baker, for defendant in error.
As this case will have to go to another jury, the court lay down the following, as the rule heretofore adopted by this court as to what proof is required to take a case out of the statute.
The promise to pay must he absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.
Several other objections have been raised to the proceedings in this cause, but the court do not deem any of them of sufficient importance to be commented upon, except the objection that the court suffered the security for costs to be discharged and new security taken, and then permitted the discharged security to testify. This was correct. Security for costs is in the nature of special bail, except the liability is not so great, yet bail are often discharged in order to obtain their testimony.
The judgment must be reversed with costs, and the cause remanded to the Jackson circuit court, where a venire de novo must be awarded,
Judgment reversed.
The statute of limitations, instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison and others, 1 Peter’s Rep., 360.
If the bar of a statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and if any conditions are annexed, they ought to be shown to be performed. Id., 362.
If there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay. If there he accompanying circumstances which repel the presumption of a promise or intention to pay; if the expression be equivocal, vague or indeterminate, leading to no certain conclusion, but at best to probable inferences which may affect different minds in different ways, they ought not to go to a jury as evidence of a new promise to revive the cause of action. Id., 362.
To take a case out of the statute there must be an unqualified acknowledgment not only of the debt as originally due, but that it continues so; and if there has been a conditional promise, that the condition has been performed. Bangs v. Hall, 2 Picker. Mass. Rep., 368.
If at the time of the acknowledgment of the existence of the debt such acknowledgment is qualified in a way to repel the presumption of a promise to pay, it will not be evidence of a promise sufficient to revive the debt and take it out of the statute. Sands v. Gelston, 15 Johns. Rep., 511.
Vide Clementson v. Williams, 8 Cranch, 72. Wetzell v. Bussard, 11 Wheat., 309. Harrison v. Handley, 1 Bibb, 443. Gray v. Lawridge, 2 Bibb, 284. Ormsby v. Letcher, 3 Bibb, 269. Bell v. Rowland’s adm’rs, Hardins Rep., 301. Mellick v. De Seelhorst, ante, p. 221.