to show that the trespass was actually committed within six years, it was held that evidence of a promise to make compensation, made by the defendant before the commencement of the action, and when he was threatened with an action for taking away coals, was not sufficient to support the issue; by which the plaintiff was bound to prove the affirmative, that he had a good cause of action within six years before the commencement of the suit. And although Leaper v. Tatton was there relied on to show that a promise to pay created a fresh cause of action, yet Lord Ellenborough said, that "as to the sufficiency of the evidence of the promise, it was an acknowledgment by the defendant that he had not paid the bill, and that he could not pay it; and as the limitation of the statute is only a presumptive payment, if his own acknowledgment that he has not paid be shown, it does away the statute." Here, however, the acknowledgment made by the defendant must be taken, subject to its terms and condition, and which only furnishes evidence from which a promise to pay may be inferred, according to the decision of Hyleing v. Hastings. Although in Bryan v. Horseman, (10) it was decided that an acknowledgment of the debt, though accompanied with a declaration by the defendant" that he did not consider himself as owing the plaintiff a farthing, it being six years since he contracted," was held sufficient to take the case out of the Statute of Limitations. Yet that case cannot now be supported. In Yea v. Fouraker, (11) the defendant, who had been surety in a note for another, said, after six years, "you know I had not any of the money myself, but I am willing to pay half of it;" and this, according to the report in Buller's Nisi Prius, was holden to be a promise sufficient to take the case out of the statute: and according to the report in Burrow, it was a sufficient acknowledgment for that purpose, though made after the action commenced but whether taken as a distinct promise, or only as evidence of it, it was a complete recognition of the original transaction, unaccompanied with any excuse or refusal to pay, and, on the contrary, expressive of willingness to pay half. But the question as to the quantum did not (10) 4 East, 699. (11) 2 Burr. 1099; s. c. Bull. N. P. 149. arise, as the jury had found for the defendant, and the Court granted a new trial generally. But taking it even as an acknowledgment, and so only evidence of a promise, it must be evidence of it at any period within which the debt is acknowledged to be due; that is, between such acknowledgment and the original consideration. Although Lord Mansfield, in Trueman v. Fenton, (12) said, that "the slightest acknowledgment has been holden sufficient to take a case out of the statute, such as, "Prove your debt, and I will pay you;" or, “I am ready to account, but nothing is due to you" yet it does not appear from thence whether he considered an acknowledgment as setting up the old promise, or as evidence of a new one. If only the latter, it must, like all other matters of evidence, be capable of being rebutted. In Hollings v. Shaw, (13) where an attorney brought assumpsit to recover his charges relative to the grant of an annuity, evidence that the defendant said he "thought it had been settled when the annuity was granted, but that he had been in so much trouble since, that he could not recollect anything about it," was held not to be a sufficient acknowledgment of the debt, to take it out of the Statute of Limitations, and was not to be left to the jury as evidence of the admission of such debt, although the plaintiff proved that his bill was not paid at the time of granting the annuity: and Lord Chief Justice Gibbs there said, "it is probable that if the Courts could retrace the steps which they have taken, they would perceive that justice would have been better consulted by a strict adherence to the statute, without consulting the particular cases of individuals." In the late case of A'Court v. Cross, (14) where, on the defendant being arrested on a debt more than six years old, he said, "I know that I owe the money; but the bill I gave is on a threepenny receipt stamp, and I will never pay it:" it was held to be such an acknowledgment as would revive the debt against a plea of the statute; and that the mere acknowledgment of a debt is not a promise to pay it. A man may acknowledge a debt which he knows he is incapable of paying: and it is contrary to all sound reason to presume, from such acknowledgment, that he pro (12) Cowp. 548. (13) 1 B. Moore, 340. (14) 3 Bing. 329. In mises to pay it. Yet without regarding the circumstances under which an acknowledgment was made, the Courts, on proof of it, have presumed a promise: yet there are many cases from which it may be collected, that if there be any thing said at the time of the acknowledgment to repel the inference of a promise, the acknowledgment will not take a case out of the statute. Dickenson v. Thomson, (15) it was ruled that promise of payment within the six years, though the debt was contracted long before, will evade the statute: but that confession, or only acknowledgment that the defendant owed the plaintiff so much, will not do. And in Bland v. Hazelrig, (16) Chief Justice Pollexfen was of opinion, that if the promise were renewed within the six years, yet, if not upon a new construction, it should not bind. On the whole, therefore, an acknowledgment of a debt is only evidence of a promise to pay, and must be taken with all the conditions and circumstances attending such promise. Mr. Serjeant Vaughan, in support of his rule. Admitting that the promise by the defendant is conditional, it was altogether unnecessary that any promise whatever should have been made; as a promise in law might be implied from the mere acknowledgment of the debt, and which was made within the six years from the time of the original demand, and which was still in existence. The main question is, whether the cause of action had accrued within six years. If not, a new promise revives it, and constitutes a fresh cause of action; and a bare acknowledgment is of itself sufficient to raise such promise. But no express or absolute promise is necessary; for, in Mountstephen v. Barker, (17) where, in a deed between defendant and a third person, the defendant acknowledged, within six years, the existence of a debt, and the plaintiffs were wholly strangers to the deed, it was held, that this was sufficient to take the case out of the statute, on the ground that the legal effect of an acknowledgment of the existence of a debt within six years, is sufficient of itself to raise a promise to pay the debt. In Thompson v. Osborne, Lord Ellenborough held, that a promise to pay a debt by instalments was sufficient to take a case out (15) 2 Show. 126. (16) 2 Vent. 152. (17) 3 B. & A. 141. of the statute; and in Hurst v. Parker, his Lordship drew a distinction between a case of assumpsit and trespass-holding, that a promise cannot be revived in an action of tort; but that, in assumpsit, the law would imply a new promise. In Pittam v. Forster, (18) where an action was brought against A and B, and C his wife, upon a joint promissory note made by A and C, before her marriage, and the promise was laid by A and C before her marriage, and the defendants pleaded the statute of limitations, whereupon issue was joined, it was held that an acknowledgment of the note by A within six years, but after the intermarriage of B and C, was not evidence to support the issue; and in Frost v. Bengough, (19) where, to an action on a promissory note, the defendant pleaded the statute of limitations; and the plaintiff gave in evidence. a letter written by the defendant to him, stating, "that business called him to L., but should he be fortunate in his adventures, the plaintiff might depend on seeing him at B, (the place of the plaintiff's residence,) otherwise that he must arrange matters with him as circumstances would permit ;" and it was not shown, that the letter referred to any transaction between the parties, it was held, that it was properly left to the jury to determine whether it related to the note so as to amount to a sufficient acknowledgment to take the case out of the statute, and they having found in the affirmative,—held, that their verdict was conclusive. So here, the bare acknowledgment of the debt by the defendant was sufficient to show, that the plaintiff's cause of action existed, and more particularly so, as it was made within the six years in which the plaintiff's right of action accrued; and in Leaper v. Tatton, where the defendant acknowledged his acceptance, but said, that he could not pay it-Mr. Justice Bay-, ley said, it was certainly good evidence upon an account stated; it was evidence of a debt: acknowledging his acceptance and that he has not paid it, creates a debt. Cur, adv. vult. The Court being divided, the Judges delivered their opinions seriatim, and at considerable length. The Lord Chief Justice and Mr. Justice Gaselee holding, that as the promise was (18) 1 Barn. & Cress. 248. (19) 8 B. Moore, 180. conditional only, it was incumbent on the plaintiff to prove that the defendant was of ability to pay subsequently to the promise, and previously to the commencement of the action, as well on the language of the statute as the current of authorities, which, although conflicting in their nature, were decisive to show that the plaintiff should either have declared specially on the promise, or proved that the defendant was able to pay; and they relied on the cases of― Dickenson v. Thomson, 2 Show. 126. The Duke of Marlborough v. Widmore, 2 Stra. 890. Sarel v. Wine, 3 East, 409. Pittam v. Forster, 1 Barn. & Cress. 248. Mr. Justice Park and Mr. Justice Burrough were of opinion, that as the statute had not expired at the time the promise was made, the defendant had no right to annex a condition to it,-as the plaintiff might have sued him at any time within six years from the day his original cause of action accrued, without any promise, and which merely contained a recognition that the debt was not satisfied when the promise was made; and that if the plaintiff had commenced an action against the defendant the day after, on an account stated, the acknowledgement would have been sufficient evidence to sustain such action, without putting the plaintiff to prove the original consideration. The Court being thus divided, the rule for setting aside the nonsuit was for money lent to the defendant by their testator, it was alleged, that the latter promised to pay instead of the defendant:—Held, that this was immaterial. Assumpsit, brought by the plaintiffs as executors of B. Buxton, deceased. The first count of the declaration stated, that the defendant was indebted to the testator in his life-time, in the sum of 1,2004, for money lent by the testator to the defendant, and a promise to pay accordingly. The second count stated, that the defendant afterwards, and in the life-time of the said Benjamin (the testator), to wit, on &c. at &c. was indebted to the said Benjamin in the further sum of 1,2001. for money by the said Benjamin before that time, paid, laid out, and expended, to and for the use of the defendant; and being so indebted, he, the said Benjamin, in consideration thereof, afterwards, and in the life-time of the said Benjamin, to wit, on &c. at &c. aforesaid, undertook, and faithfully promised the said Benjamin to pay, &c. Then followed counts for money had and received, interest, and on an account stated between the defendant and the testator in his life-time, and a promise to pay the latter accordingly. The defendant demurred specially to the second count, and assigned for cause, that it was stated and alleged in and by that count, that the said Benjamin in his life-time, undertook, and faithfully promised the said Benjamin to pay him the said sum of money in that count mentioned, when the defendant should be thereunto requested. The plaintiffs joined in de |