A very little observation will show that these two views lead to results, which are not only distinctly different, but antagonistic: This difference may be stated theoretically thus: If the statute of limitation be a statute of presumption, then it is taken away by whatever will rebut the presumption; and this is anything which implies or amounts to an acknowledgment that the debt still exists. But if it be a statute of repose, then it remains in force, unless the debtor renounces its benefit and protection, and voluntarily makes a new promise to pay the old debt. It is true, that immediately after the enactment of the statute of James, if the statute were pleaded, the only replication was "a new promise." But when issue was joined on this replication, the plaintiff made out his case by showing only a new acknowledgment. And it was a gradual progress in the courts which finally led them to require, that this acknowledgment should be such, in fact, as amounted to a promise. Thus, Lord Mansfield said, (e) "The slightest acknowledgment has been held sufficient, as saying,'Prove your debt and I will pay you;" I am ready to account, but nothing is due to you.' And much slighter acknowledgments than these will take a case out of the statute." And in our notes will be seen decisions or

Beale v. Nind, 4 B. & Ald. 568; Clarke v. Hougham, 2 B. & C. 149; Frost v. Bengough, I Bing. 266; Colledge v Horn, dicta which are not less extreme. (f) But on what principle can they rest, * for a moment, except that which looks upon limitation as founded on actual probability of payment ? And connected with these decisions grew up an opinion among courts, that the plea of the statute was dishonorable, and not to be favored, (g) So late as in 1830, Mr. Justice Story (h) spoke very strongly - in a passage we shall presently have occasion to quote at length - of his own recollection of an extreme and inexcusable endeavor of the courts to take from the operation of the statute of limitations, all cases in which any words or phrases of the supposed debtor could be strained into an admission of the debt. But even so early as in 1702, it was said by the Court of King's Bench, (i) that, "The statute of limitations, on which the security of all men depends, is to be favored." And we give, in a note, acknowledgments which have been held insufficient to take the case out of the statute, although, if the authorities *stated in a previous note had been followed, most of these, if not all, must have been held sufficient to constitute a new promise.(j) .And at length, through a series of decisions, going * to show that the statute is intended founded, or at least are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their ignorance, or their over-confidence in regard to transactions which have become dim by age. Yet I well remember the time when courts of law exercised what I cannot but deem a most unseemly anxiety to suppress the defence; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admissions of the debt Happily, that period has passed away; and judges now confine themselves to the more appropriate duty of construing the statute, rather than devising means to evade its operation. *

3 Bing. 119; Tnggs v. Newnham, 1 C.

& P. 631; East India Co. v. Prince, Ryan & M. 407; Sluby v. Champlin, 4 Johns. 461; DeForest v. Hunt, 8 Conn. 179; Aiken v. Benton, 2 Brev. 330: Lee v. Perry, 3 McCord, 552; Glenn v. Mc-Cullough, Harper, 484; Borden v. M'El-henny, 2 Nott & McC. 60; Sheftall v. Clay, R. M. Charlt. 7; Bishop v. Sanford, 15 Ga. 1.

(d) 9 Geo. IV. c 14.

(e) In Trueman v. Fenton, Cowper, 548.

(f) Thus, in Richardson v Fen, Lofft, 66, it appeared that the defendant met a man in a fair, and said he went to the fair to avoid the plaintiff, to whom he was indebted This was held to be a sufficient acknowledgment to take the case out of the statute, there being no other debt between them And in Lloyd v. Maund, 2 T. R. 760, it was held, that a letter written by the defendant to the plaintiff's attorney, on being served with a writ, couched in ambiguous terms, neither expressly admitting nor denying the debt, should be left to the jury to consider whether it amounted to an acknowledgment of the debt, so as to take it out of the statute. And Ashhurst, J., said " It is certainly true, that any acknowledgment will take the case out of the statute of limitations Now, though this letter is written in ambiguous terms, there are some parts of it from which the jury might perhaps have inferred an acknowledgment of the debt. Throughout the whole of it, the defendant does not deny the existence of the debt" So in Bryan v. Horseman, 4 East, 599, it was held, that an acknowledgment of a debt, though accompanied with a declaration by the defendant "that he did not consider himself as owing the plaintiff a farthing, it being more than six years since he contracted," was sufficient to take the case out of the statute. So in Leaper v. Tatton, 16 East, 420, in assumpsit against the defendant, as acceptor of a bill of exchange, and upon an account stated, evidence that the defendant acknowledged his acceptance, and that he had been liable, but said that he was not liable then, because it was out of date, and that he could not pay it, it was not in his power to pay it, was held sufficient to take the case out of the statute, upon a plea of actio non accrevit infra ser annos. And Lord Ellenborough said: "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 presumption of payment, if his own acknowledgment that he has not paid be shown, it does away the statute." And again, in Clark v. Hougham, 2 B. & C. 154, Bayley, J., said: "The statute of limitations is a bar, on the supposition, after a certain time, that a debt has been paid, and the vouchers lost. Wherever it appears, by the acknowledgment of the party, that it is not paid, that takes tho case out of the statute. Leaper v; Tatton, 16 East, 420; Dothwaite v. Tibbut, 5 M. & S. 75. And according to those cases it makes no difference whether the acknowledgment be accompanied by a promise or refusal to pay. Mountstephen v Brooke, 3 B. & Ald. 141, shows that an acknowledgment to a third person is sufficient."