Barlow v. Bellamy

The opinion of the court was delivered by Collamer, J. The only question presented is, does an unqualified acknowledgment that a debt is due take it out of the statute [56] of limitation ? It is too late now to inquire whether the statute is to be holden an absolute bar both of the debt and the remedy, except in the cases therein excepted; or whether it rests on a presumption of payment, which, when rebutted, dispenses with the statute. Whether the statute confers on the debtor a personal privilege, which he alone may waive by confessing the debt, or by neglecting to plead the statute when sued; whether the statute was made for debts which had been paid, or for those which never were paid; whether, in case of a new promise, the former debt, barred by express law, is revived, or only a foundation laid for an action on the new express promise, of which the old debt constitutes the consideration of moral obligation: — all these, if res inte-gra, would constitute grave questions, redolent of discussion. But they are too far settled by decision for any court, not utterly regardless of the-course of safe precedent, now to adventure upon. While we repudiate those decisions which wrest a man’s words and actions and even silence, to put into his mouth concessions and promises which he never made; we at the same time consider it fully and repeatedly decided in this state, and sustained by authority, that an unqualified concession of an existing debt takes it out of the statute. In this case, tbe defendant, within six years before the commencement of this suit, and after the statute had run on his notes, conceded that he made the notes, and that they were due. This was an unqualified acknowledgment of an existing debt; nor was it accompanied with any salvo, or protest, or disclaimer of liability, which could rebut the implied assumpsit, arising on an acknowledged indebtedness. — Gailer vs. Grennell, 2 Aik. Rep. 349. Judgment affirmed.