* An admission of a debt unaccompanied by a promise to pay is generally held sufficient to remove the bar of the statute, if nothing is said at the time inconsistent with an intent to pay. See Grimball v. Mastin, 77 Ala. 553; Stewart v McFarland, 50 Northtional, or subject to whatever qualification the debtor thinks proper to make. And in that case, the acknowledgment becomes a new promise, or, in other words, the bar of the statute is removed, only when the creditor can show that the condition has been performed, or that the event has happened, or the time arrived, by a reference to which the acknowledgment was qualified. (x)1 But it does not seem to be necessary, even in England, where pleading is more exact than here, to declare * upon the promise as conditional. (y) If an acknowledgment be on its face, or in its direct meaning, full and unconditional, it is competent to show, by other admissible evidence, as of the res gestae, that it was not intended as an acknowledgment, but for a different purpose. (z) And by parity of reason, it would seem to be competent to show, that doubtful expressions were meant and understood by the parties to operate as a condition or qualification. So, if an acknowledgment be made, and at the same time a discharge of the debt be given, the acknowledgment is of no force, although the discharge be void. (a) The acknowledgment must be voluntary; (b) but whether this applies to admissions made under process of law, as by a bankrupt on his examination, is not quite certain; but the present weight of authority is, perhaps, in favor of the sufficiency of this acknowledgment.(c) We should doubt however whether this bare acknowledgment ought to be held as the equivalent of a new promise.

(x) Tompkins p. Brown, 1 Denio, 247; Hill v. Kendall, 25 Vt. 528; Humphreys v. Jones, 14 M &W.l; Butterfield v Jacobs, 15 N H. 140; Bullock v. Smith, 15 Ga. 395; Bidwell v. Rogers, 10 Allen, 438. And see cases cited ante, p * 65, n. (j).

(y) Irving v. Veitch, 3 M. & W. 90; Edmunds v. Downes, 2 Cromp. & M. 459, 4 Tyrw. 173; Haydon v. Williams, 7 Bing. 168, 4 Moore & P. 811; Gardner v. M' Ma-hon, 3 Q. B 561.

(z) Cripps v. Davis, 12 M. & W. 159.

(a) Goale v. Goate, I H. & N. 29; Prentiss v. Stevens, 38 Vt. 159.

(b) Arnold v. Downing, 11 Barb. 554.

(c) In Eicke v. Nokes, 1 Moody & R. 359, it was held, that an entry in a bankrupt's examination, of a certain sum being due to A, is a sufficient acknowledgment to take the case oat of the statute of limitations. But in Brown v. Bridges, 2 Miles, 424. where A and B, being indebted to C, filed their petition for the benefit of the insolvent laws, in which they stated, in their schedule of debts, the debt due to C; it was held, that this was not a sufficient acknowledgment to take the debt out of the statute. And the court said. "An acknowledgment of a debt, to prevent the operation of the statute of limitations, must at least be consistent with a promise to pay. This is the law in Pennsylvania. The acknowledgment in defendant's petition for the western Hep. 220 (la.): Shipley v. Shilling, 66 Md. 558; Weston v Hodgkins, 136 Mass. 326, Denny v. Marrett, 29 Minn. 361; Chidsey v Powell, 91 Mo. 622, Rowe v. Marchant, 86 Va. 177. In some states, as Iowa, by the wording of the statute an admission is sufficient. A promise in the words,"I hereby waive the statute of limitations as to the within note," is as effective as a promise in terms to pay the debt. Bowmar v. Peine, 64 Miss. 99.

1 A debtor's statement to his creditor, "I will pay it as soon as possible," was held to take the debt out of the statute, without the necessity of proof by the creditor that it had become "possible" for the debtor to pay the debt. Norton v.Shepard, 48 Conn. 141. But a promise to pay when "able" was field insufficient, without proof of ability. Mattocks v. Chadwick, 71 Me. 313. So in Bethell v. Bethell. 34 Ch. D. 561. - K.

It is uncertain whether every new item and credit, in a mutual and running account, given by one party to the other, is an admission and acknowledgment of an unsettled account, and evidence of a promise to pay the balance, whatever that account and balance may appear to be, so as to take the whole account out of the statute. The affirmative of this question is maintained by numerous decisions, (d)l but we think these benefit of the insolvent laws, is not of this character, for the very basis on which an insolvent asks his discharge is that he is unable to pay his debt. How this can be tortured into a promise to pay, or as being consistent with such a promise, we are at a loss to discover." And see. to the same effect, Christie v. Flemington, 10 Pa. 129. See further, Kennett v. Milbank, 8 Bing. 38; Wellman v. Southard, 30 Me. 425; Pott v. Clegg, 16 M. & W. 321.

(d) A leading case upon this point is Catling v. Skoulding, 6 T. R. 189. It was there held, that if there be a mutual account of any sort between the plaintiff and defendant, for any item of which credit has been given within six years, that is evidence of an acknowledgment of there being such an open account between the parties, and of a promise to pay the balance, so as to take the case out of the statute of limitations. And Lord Kenyon said: "It is not doubted but that a promise or acknowledgment within six years will take the case out of the statute; and the only question is, whether there is not evidence of an acknowledgment in the present case. Here are mutual items of account; and I take it to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item and credit in an account given by one party to the other, is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained, and any act which the jury may consider as an acknowledgment of its being an open account, is sufficient to take the case out of the statute. Daily experience teaches us, that if this rule be now overturned, it will lead to infinite injustice." Perhaps this decision is consistent with the views then prevailing in respect to new promises and acknowledgments; but it is submitted that it cannot be sustained upon principle, since the decision in Tanner v. Smart in England and Bell v. Morrison in this country. And this is the view adopted by the Superior Court of New Hampshire, in Blair v. Drew, 6 N. H. 235; though some of the reasoning of Parker, J., goes even further. In delivering the judgment of the court, he says: "Upon what principle is it, that a sale of an article upon credit is an admission of anything else except that the subject-matter of that transaction had existence ? Upon what principle does it admit the existence of an unsettled account upon the other side, or draw after it anything else ? If in the nature of things, there could not be an account consisting of a single item, it might well be said that the charge of one item was an admission of something more. If, in the ordinary transaction of business, there could not be an account upon one side, without an account upon the other to balance it, in whole or in part, there would be some foundation for such admission. But every day's experience negatives all this; accounts exist upon one side only; and of no more than a single item. The purchase is made-the credit is given -and this is all the dealing between the parties. Many of the decisions upon the statute of limitations, much controverted, if not exploded, were founded on the assumption, that the statute was based upon a presumption of payment, and, of