Simonton v. . Clark ( 1871 )

Dick, J.

The principles of law which govern this case, have been so often considered by this Court, that they need no further discussion. 2 Battle’s Digest, 877.

It is only necessary to consider the general results of decided cases, and apply the well settled rules of law to the case before us.

The statute of limitations operates upon the remedy merely,, and does not extinguish the debt. To revive the remedy taken away by the statute of limitations, there must be an express or implied promise to pay the debt. Where a plaintiff relies upon an implied promise to sustain his action, he must show such an unqualified and direct acknowledgment on the part of the debtor, of a certain existing debt, and present obligation and willingness to pay the same, that the law can imply a promise to pay upon a future demand.

A mere acknowledgment of the debt, is not sufficient to repel the statute; but there must be such facts and circumstances, as show that the debtor recognized a present subsisting liability, and manifested an intention to assume or renew the obligation. In our case the defendant’s testator offered in 1863, to pay the debt sued on, and which was barred by the statute of limitations, in Confederate money or bank bills. This offer of payment was refused by the plaintiff’s testator, and specie was demanded. The debtor in no way accorded to this demand ; and there is nothing from which the law can imply a promise on the part of said debtor, to pay in specie, or in any other kind of money upon a future demand.

The act of the defendant’s testator, was a mere offer to pay in the currency then in circulation, and no intention was in any way shown of assuming or renewing the obligation.

We think the proper inference to be drawn from the evidence, is, that the defendant’s testator was willing to pay the debt in the currency of the country, which was then abundant; and as that was refused, his purpose was to rely upon the statute of limitations.

Questions like the present, will soon cease to be matters of controversy in the Courts, as the C. C. P., sec. 51, prescribes, u That no acknowledgement or promise shall be received as evidence of a new or continuing contract, whereby to take a case out of the operation of the statute of limitations, unless the same be contained in some writing signed by the party to be charged thereby,” &c.

There was error in the ruling of his Honor.