¶1(dissenting): I do not concur in the opin-
¶2ion of the Court. This is an action of debt upon a plain note of hand for §3,915.86, dated April 27, 1885, and this action was commenced on the .. day of.., 1893. The execution of the note, and that the same has not been paid, are admittod by defendant. But he pleaded and relies on the Statute of Limitations as a bar to plaintiff’s recovery. To rebut the bar of the statute, the plaintiff offered in .evidence four letters from the defendant. The last one of these letters is ([noted from in the opinion of the Court. But, it seems to me that the most material part of this letter is omitted. Therefore I think it best to reproduce the whole letter, thinking we may better understand the defend:-int’s hand if wrn see the whole of it than we can if we only see a part — especially if the index finger is left off, as seems to be the case here. The letter is as follows: “Crabtree, N. C., August 3, 1891. Mr. W. A. Hill, Enoree, S. C. Yours of the 29th to hand. *906In reply will say I will not give yon any mortgage. I will secure yon as I wrote you. I have notes that will pay every dollar that I owe, with land securities. If that will not satisfy you, you can send Mr. Carson or any other lawyeryou may wish. I presume you did notgive very much for my note, as you appraised my note doubtful. But don’t understand me to say that I do not mean to pay, for I expect to pay every dollar of it. If you only give me time, I will, at any time you and Ben may come, turn the notes over to you for the full amount of my note, to be credited on my note. I do not think it will do any good for you to send a lawyer to see me, as I will not do any more than I have promised to do. I have disposed of my property- that I offered Ben, and have got only notes to secure you with now. Show thi? letter, and also the other I wrote you, to Ben, and see what he may sa}', and write me at once. Yours, W. C. Hill.”
¶3It will be seen that in this letter the defendant uses the following language — a sentence not quoted in the opinion of the Court : “ But don’t understand me to say that I do not mean to pay, for I expect to pay every dollar of it.” This, in my opinion, is an explicit acknowledgment of the debt, from which the law will infer a promise to pay, and is ‘itself a promise to pay. And either an acknowledgment or a promise to pay is, in my opinion, sufficient to rebut the bar of the Statute of Limitations. It is held by this Court in Royster v. Farrell, 115 N. C., 306, that the statute requiring the acknowledgment or promise to he in writing is but a rule of evidence, like the Statute of Frauds, and does not change the law as to what shall constitute an acknowledgment or promise to rebut the Statute of Limitations. And, while this is true, it is also a legislative recognition of the existing law, that the operation of the statute may be rebutted by an acknowledgment of the *907debt. If not, why should the statute say, in the very first sentence, and being the second word in the statute, that “ no acknowledgment or promise shall be received as evidence of a new or continuing contract,” &c., if it had not been the law before? In my opinion, it necessarily implied that an explicit acknowledgment of a subsisting debt like this, where there is no uncertainty as to date or amount, will rebut the operation of the statute. But, whether this be so or not, it is held in Royster v. Farrell, supra, that it requires no more since the statute, Section 172 of The Code, to rebut the operation of the statute than it did before. It may be that our decisions are not altogether uniform as to what is required. This will be found upon examination to be more in appearance than in reality. But our reported cases wTill show that, from the time of the first-published opinions to the present, there has been a recognition of the principle that the statute might be rebutted by an acknowledgment of the debt. There has been much discussion as to what was a sufficient acknowledgment to do this. But it has been almost, if not quite, uniformly held that it might be done.
¶4The cases in which this doctrine has been held are too numerous f r me to undertake to cite in this opinion. But the earlier opinions may be found in the second volume of Battle’s Digest, commencing on page 877. I will only undertake to give a few of them :
¶5“An acknowledgment to an executor will prevent the bar of the statute as well as when made to the testator.” Billews v. Boggan, 1 Haywood, 13 (18). “To repel the statute, there must be an acknowledgment of the debt, not simply of a fact which may show that the debt is unsatisfied.” Ferguson v. Taylor, 1 Hay., 20. A defendant wrote to the plaintiff: “ I would rather come to a settlement, although I should allow the account as insisted *908on by you, rather than wait the event of a lawsuit,” and it was held that these words took the case out of the statute. Ferguson v. Fitt, 1 Haywood, 239 (274). “An acknowledgment by one partner, made after the dissolution of the firm, will prevent the operation of the statute on the claim existing against the partnership.” McIntyre v. Oliver, 2 Hawks., 209; Walton v. Robinson, 5 Ired., 341. “ An acknowledgment, or promise, to repel the Statute of Limitations must be distinct and explicit, and plainly refer to the debt in question.” Smallwood v. Smallwood, 2 Dev. & Bat., 330. “ When the new promise is conditional, upon the performance of the condition, it is evidence of a previous absolute promise.” Falls v. Sherrill, 2 Dev. & B., 371. “In order to repel the Statute of Limitations, there must be either an express promise to pay, or an explicit acknowledgment of a subsisting debt.” Maskin v. Waugh, 2 Dev. & Bat., 517.
¶6The older reports are full of such cases. I know it has been said in some of the more recent cases that the courts do not look upon the Statute of Limitations with the disfavor they once did. But I am satisfied that no man, claiming to be a gentleman, ever pleaded the Statute of Limitations against the collection of a just debt, for which he had received value, without feeling he had done a dishonorable thing, and without lowering himself in his own estimation.
¶7I will now consider some of the more recent decisions : In Vass v. Conrad, 7 Jones, 87, it is said there must be a promise to pay, or an acknowledgment of the debt. In Glensey v. Fleming, 4 Dev. & Bat., 129, it is said there must be a promise to pay, or an acknowledgment of a subsisting debt, by the debtor, by which a promise to pay is implied. In Henly v. Lanier, 75 N. C., 172, Bynum, J., delivering the opinion of the Court, says *909the “ acknowledgment or promise to pay must be in writing.” In Taylor v. Miller, 113 N. C., 340, the defendant Miller, writing to Gaither, the attorney of plaintiff, in reply to a letter from Gaither, says : “ Your letter received. I have been to town twice to see you, but you were not in. I propose to settle both of your claims the first of next month, which I hope will be satisfactory. Will see you in person soon.” And the Court construed the word “ propose ” to mean promise, and the word “settle” to mean pay, and held that it renewed a note then barred, and rebutted the operation of the Statute of Limitations. And Justice MoRab, in the discussion of the case on page 343, uses this language : “While either of these qualifying words alone would be applicable to the promise or aohnowledgment to take the case out of the Statute of Limitations,.&c.” “ The law speaks for itself: ‘ no aeJmowledg-mentor promise shall be received as evidence of a new or continuing contract, cfec.’ ” — quoting from the statute, Section 112 of ITe Code. In Royster v. Farrell, 115 N. C., at p. 309, Justice Buewell uses this language : “ It was argued before us that while a written aohnowledgment of the debt would take.it out of the operation of the Statute of Limitations, only a promise could have that effect on the right to foreclose a mortgage. A written acknowledgment is as effective in the one case as in the other.” “ The Code has not altered at all the effect of a new promise or acknowledgment.” Taylor v. Miller, and Royster v. Farrell, are the two latest expressions of this Court upon the effect of an acknowledgment or new promise as a bar to the operation of the Statute of Limitations.
¶81 admit that. Simonton v. Clark, 65 N. C., 525, quoted and relied upon in the opinion of the Court, tends to sustain that opinion, if nothing more appeared in the defendant’s letter of August 3d, 1891, than is quoted in the *910opinion of the Coart — that there was nothing in the letter except an offer to pay in notes, but to my mind this is not the case, as I think I have shown from the letter itself. Simonton v. Clarkis put on the ground that plaintiff’s intestate only intended to pay in Confederate money, ‘‘which was then plentiful;” that plaintiff’s intestate refused this and demanded specie, which proposition was refused. And the Court say that this was evidence that he did not intend to pay the debt in any other way, but intended to rely on the Statute of Limitations. And whether this case is right or not, to my mind it is clearly distinguishable from the one before the Court. It is true that the Judge delivering the opinion of the Court uses this language": “That a mere acknowledgment of a debt is not sufficient to repel the statute; but there must be sufficient facts and circumstances to show that the debtor recognized a present subsisting liability, and manifested an intention to assume or renew the obligation.” This case, to my mind, recognized the fact that the operation of the bar might be rebutted by an acknowledgement. But the Court hold that the facts shown in this case do not do so— “ a mere acknowledgment.” This wijl not be sufficient, if the circumstances connected with the acknowledgment show that the defendant did not intend to pay, as in Glensey v. Fleming, supra, and other cases, where the promise which the law implies from the acknowledgment is rebutted by the action of the party making the acknowledgment ; as, where a debtor offers to pay a less amount than the debt calls for, but says, “if you don’t take this, I will plead the statute.” This is an acknowledgment of the debt. But the assumption that the law would imply is rebutted by what the debtor says at the time he makes the acknowledgment. But this rule does not apply in this case. The fact that a debtor offered to pay in notes *911or land, which was not accepted, cannot defeat a direct acknowledgment or promise to pay. Suppose Clark, in the case of Simonton v. Clark, supra,after Miller, plaintiff’s intestate, had refused to take the Confederate money, had said to the intestate “ But don’t understand me to say that I do not mean to pay, for I- expect to pay every dollar of it,” can it be supposed that the Court would have said that “ no intention was in any way shown of assuming or renewing the obligation ?” So, without extending this discussion, my opinion is that Simonton v. Clarkis not in conflict with this opinion ; that the language used in defendant’s letter above quoted — “ But don’t understand me to say that I do not moan to pay, for I expect to pay every dollar of it ” — is much stronger than the language used by the defendant in Taylor v. Miller—“ I propose to settle ; ” that under the great weight of authority, as well as Section 112 of The Code, the bar of the Statute of Limitations in my opinion is íebutled in this case, and there was error in the ruling of the Court.