The principle clearly to be deduced from the decisions of this
Court on the statute of limitations is that in addition to the
admission of a present subsisting debt, there must be either an
express promise to pay, or circumstances from which an implied
promise may fairly be presumed.
An examination and summary of the decisions of this Court on the
statute of limitations.
The English statute of 9 May, 1828, Geo. 4. ch. 14, relative to
the limitation of actions.
This was an action on a promissory note drawn by James Moore,
the plaintiff in error, in favor of Gilbert Docker and by him
endorsed to the Bank of Columbia. The note was for five hundred
dollars, dated April 25, 1816, and payable sixty days after
The suit was commenced on 14 July, 1825. It was originally
instituted under the provisions of the charter granted to the Bank
of Columbia by filing a copy of the note in the office of the clerk
of the Circuit Court for the District of Columbia and an order to
the clerk from the president of the bank, upon which a writ of
was issued to the marshal of the District
commanding him to levy on the goods of the drawer of the note the
amount thereof with interest and costs.
On the return of the marshal that he had levied on the goods of
the defendant, he, the defendant, appeared in court and alleged
that he had a good and legal defense to plead in bar to the claim
of the plaintiffs in the execution. The case was placed on the
docket for trial, and a declaration on the note having been filed,
the defendant pleaded the statute of limitations and issue was
joined thereon. A verdict was rendered for the plaintiffs, and
judgment entered by the court.
On the trial, the following bill of exceptions was tendered by
the defendant in the circuit court, and, under the special
Page 31 U. S. 87
of a writ of error by MR. CHIEF JUSTICE MARSHALL, the case came
before this Court.
The plaintiffs, to support the issue aforesaid on their part,
produced and read in evidence to the jury the note and endorsement
in the declaration mentioned, being the only cause of action
produced or shown in this cause, which note and endorsement are in
these words, to-wit:
"Washington City, April 25, 1816"
"$500. Sixty days after date, I promise to pay Gilbert Docker or
order five hundred dollars for value received, negotiable at the
Bank of Columbia."
"Credit the drawer. G.D."
"Endorsed -- Pay the contents of the within note to the
President, Directors and Company of the Bank of Columbia or order.
Value received. Gilbert Docker."
The plaintiffs, in order to prove an acknowledgement of the
defendant within three years next before the commencement of this
suit so as to take the case on the said note out of the statute of
limitations, produced William A. Rind, who testified that in the
summer of 1823, he went into a tavern to read the newspapers, where
he saw in the public room the defendant and two companions
drinking, the defendant appearing to be elevated with what he had
drunk. After the witness came into the room and while sitting there
looking at the newspapers, he overheard a conversation between the
defendant and his two companions in which they were bantering him
about his independent circumstances, and his being so clear of debt
or of the banks, when the defendant jumped up and danced about the
room, exclaiming, "Yes, except one damned five hundred in the Bank
of Columbia, which I can pay at any time." No part of this
conversation was addressed to the witness, nor did he take any part
in it. The witness had been for some time clerk in the Bank of
Columbia in Georgetown, but was then in the prison bounds in the
City of Washington, and after his discharge from the prison bounds,
immediately returned to the bank in Georgetown; he believes the
defendant, at the time of the above conversation, knew him to be a
clerk of the Bank of Columbia, and the defendant, at the time he
used the expressions above mentioned, turned round and looked at
the witness; the witness at the time knew that the
Page 31 U. S. 88
note in question was lying over in bank, and knows of no other
five hundred dollar note of the defendant in that bank but what was
paid. The plaintiffs further proved that, upon examination of their
books, no other discounted note of the defendant stood charged to
the defendant at the time of the said conversation.
Whereupon the counsel for the defendant prayed the court to
instruct the jury that the evidence aforesaid did not import such
an acknowledgement of the debt in question as was sufficient to
take it out of the statute of limitations, which instructions the
court refused, and permitted the said evidence to go to the jury as
evidence of an acknowledgement to repel the bar of the statute. To
which decision the defendant excepts, &c.
Page 31 U. S. 90
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The only question in this case is whether the evidence offered
upon the trial was sufficient to prevent the statute of limitation
from barring the action.
The suit was founded upon a promissory note made by the
plaintiff in error, bearing date 25 April, 1816, by which, sixty
days after date, he promised to pay Gilbert Docker or order five
hundred dollars, value received, at the Bank of Columbia.
The note was duly endorsed to the Bank of Columbia, and in July,
1825, a suit was commenced in the Circuit Court of the United
States for the District of Columbia upon that note. The statute of
limitations, among other pleas, was interposed, and the plaintiff
in the court below, to take the case out of the statute, proved by
William A. Rind that in the summer of 1823 he went into a tavern to
read the newspapers, when he saw in the public room the defendant
James Moore and two companions drinking, Moore appearing to be
elevated with what he had drank, and whilst there, looking at the
newspapers, he overheard to conversation between the defendant and
Page 31 U. S. 91
two companions in which they were bantering him about his
independent circumstances and of his being so clear of debt or of
the banks, when the defendant jumped up and danced about the room,
exclaiming, "Yes, except one damned five hundred in the Bank of
Columbia, which I can pay at any time." No part of this
conversation was addressed to the witness. The witness had been a
clerk in the bank, but was then in the prison bounds in the City of
Washington, and after his discharge from prison, he immediately
returned to the bank in Georgetown. The witness believed the
defendant knew him to be a clerk in the bank. At this time he, the
witness, knew the note in question was lying over in bank, and he
knows of no other five hundred dollar note of the defendant in that
bank but what is paid. The plaintiffs further proved that upon
examination of their books, no other discounted note of the
defendant stood charged to him at the time of the conversation
referred to by the witness.
Upon this evidence the defendant prayed the court to instruct
the jury that the evidence aforesaid did not import such an
acknowledgement of the debt in question as was sufficient to take
it out of the statute of limitations, which instruction the court
refused, and permitted the evidence to go to the jury as evidence
of an acknowledgement to repel the bar of the statute. The jury
found a verdict for the plaintiff. A bill of exceptions was taken
to the decision of the court, and the case is brought here by writ
The question as to what shall be a sufficient acknowledgement or
promise to take a case out of the statute has frequently received
the attention and examination of this Court, and the cases both in
England and in this country have been critically reviewed. It is
deemed unnecessary again to travel over this ground, but it is
sufficient barely to apply some of the rules and principles to be
extracted from these cases to the facts in the one now before
This Court, in the case of Cleminston v.
8 Cranch 72, nearly twenty years since,
expressed a very decided opinion that courts had gone quite far
enough in admitting acknowledgements and confessions to bar the
operation of the statute of limitations, and that this Court was
not inclined to
Page 31 U. S. 92
extend them; that the statute was entitled to the same respect
as other statutes, and ought not to be explained away. And from the
course of decisions in the state courts as well as in England, such
seems to have been the general impression, and they have been
gradually returning to a construction more in accordance with the
letter, as well as the spirit and intention of the statute.
In the case referred to it was laid down as a rule applicable to
this question that an acknowledgement of the original justice of a
claim was not sufficient to take the case out of the statute, but
the acknowledgement must go to the fact that it was still due. And
in Wetzell v.
11 Wheat. 310, it is held that the
acknowledgement must be unqualified and unconditional, amounting to
an admission that the original debt was justly demandable. If the
acknowledgements are conditional, they cannot be construed into a
revival of the original cause of action unless that be done on
which the revival was made to depend. It may be considered a new
promise for which the old debt is a sufficient consideration, and
the plaintiff ought to prove a performance or a readiness to
perform the condition on which the promise was made.
This is the doctrine which prevails in the state courts
generally. In New York it is held that an acknowledgement, to take
a case out of the statute of limitations, must be of a present
subsisting debt. If the acknowledgement be qualified so as to repel
the presumption of a promise to pay, it is not sufficient evidence
of a promise to pay so as to prevent the operation of the statute.
15 Johns. 511; 6 Johns.Ch. 266, 290.
This question again recently (1828) came under the consideration
of this Court in the case of Bell v.
1 Pet. 352, and underwent a very
elaborate examination, and the leading cases in the English and
American courts were reviewed, and the Court said
"We adhere to the doctrine in Wetzell v. Bussard,
think it the only exposition of the statute which is consistent
with its true object and import. If the bar is sought to be a
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. "
Page 31 U. S. 93
If there be no express promise, but a promise is to be raised by
implication of law from the acknowledgement of the party, such
acknowledgement ought to contain an unqualified and direct
admission of a previous subsisting debt which the party is liable
and willing to pay. If there be accompanying circumstances which
repel the presumption of a promise or intention to pay, if the
expressions be equivocal, vague, and 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.
Any other course would open all the mischiefs against which the
statute was intended to guard innocent persons and expose them to
the danger of being entrapped in careless conversations.
The principle clearly to be deduced from these cases is that in
addition to the admission of a present subsisting debt, there must
be either an express promise to pay or circumstances from which an
implied promise may fairly be presumed.
And this is the conclusion to which the English courts, after a
most vacillating course of decisions, had come before the later act
of Parliament of Geo. IV, ch. 14. This act shows in a very striking
point of view the sense of that country of the great mischiefs
which had resulted from admitting vague and loose declarations in a
great measure to set aside and make void the statute of
That act (9th May 1829) recites that whereas various questions
have arisen in actions founded on simple contract as to the proof
and effect of acknowledgements and promises offered in evidence for
the purpose of taking cases out of the operations of said
enactments (statute of limitations), and it is expedient to prevent
such questions and to make provision for giving effect to the said
enactments and to the intention thereof, be it enacted, &c.,
that in actions of debt or upon the case grounded upon any simple
contract, no acknowledgement or promise by words only shall be
deemed sufficient evidence of a new or continuing contract whereby
to take any case out of the operation of the said enactments or to
deprive any party of the benefit thereof unless such
acknowledgement or promise shall be made or contained by or in
Page 31 U. S. 94
some writing to be signed by the party chargeable thereby.
Martin's Treatise on act 9 Geo. IV.
Although this act can have no direct bearing upon the question
here, it serves to illustrate and confirm the fitness and policy of
the course pursued by our courts in cautiously admitting loose
verbal declarations and promises to take a case out of the statute
If the doctrine of this Court as laid down in the cases I have
referred to is to govern the one now before us, the facts and
circumstances given in evidence fall very far short of taking the
case out of the statute of limitations. There is no direct
acknowledgement of a present subsisting debt, no express promise to
pay, nor any circumstances from which an implied promise may fairly
be presumed. The declarations of the defendant below were vague and
indeterminate, leading to no certain conclusion, and at best to
probable inference only, and indeed, if unexplained by any other
evidence, they were senseless. It is left uncertain even whether
the conversation referred to the note in question. The evidence
that this was the only five hundred dollar note of his lying over
in the bank might afford a plausible conjecture that this was the
one alluded to. But that is not enough, according to the rule laid
down in Bell v. Morrison,
nor is there any direct
admission of a present subsisting debt due. The epithet which
accompanied the declaration would well admit of a contrary
conclusion, and that there were some circumstances attending it
that would lead him to resist payment. The assertion of his ability
to pay is no promise to pay.
The whole declarations, taken together, do not amount either to
an explicit promise to pay, made in terms unequivocal and
determinate, or disclose circumstances from which an implied
promise may fairly be presumed; one or the other of which this
Court has said is necessary to take the case out of the
The court below therefore erred in not giving the instructions
prayed for by the defendant.
The judgment must accordingly be reversed, and the cause
sent back, with directions to issue a venire de novo.