¶1The opinion of the court was delivered by
¶2In the case of Phelps v. Stewart & Wood, 12 Vt. R. 264, Royce J. lays down the rule, as extracted from the recent decisions in this state, to be as follows ; to take a demand out of the statute of limitations, “ there must be an acknowledgment of tlje debt as still due, with an apparent willingness to remain liable for it, or, at least, without an avowed intention to the contrary.” In the case of Sands v. Gelston, 15 John. R. 511, where this subject was much considered, Chief Justice Spencer said, “that if, at the time of the acknowledgment of the existence of the debt, such acknowledgment' is qualified, in a way to repel the presumption of a promise to pay, it will not be evidence of a promise, sufficient to revive the debt and take it out of the statute.” The principle to be deduced from these and other cases, both English and American, 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. Though the course of decisions upon the statute of limitation has been vacillating, and, in many instances, has proceeded upon principles calculated to thwart the real object of the statute, yet, courts, of late years, have manifested a disposition to retrace their steps, to give to language its rational and obvious meaning, and, as far as practicable, to bring back the doctrine to sober and rational limits; and, to render the statute what it was emphatically intended to be, “a statute of repose.”
¶3The auditor reports that in the winter of 1833, which was less than six years before the commencement of the suit, the defendant requested Williams to call upon the plaintiffs and settle his, (defendant’s) account with them, saying he thought he had paid them more than was due ; that Williams called accordingly, though he did not settle the account, and that in May, 1834, the defendant again told Williams that the plaintiffs’ account was not settled. The evidence is most ample to show an unqualified admission, on the part of the *577defendant, of an unsettled account between the parties; and the fact that the defendant wished Williams to settle it, implies a promise to pay whatever balance should, upon such settlement, be found due. It manifested not only a willingness to remain liable for, but to pay, such balance. It is, indeed, far from showing “ an avowed intention to the contrary.” The defendant’s saying to Williams, that “ he thought he had more than paid the plaintiffs,” shows no unwillingness to pay a balance, should one be found due. It is simply an expression of matter of opinion as to the standing of the accounts. If, then, we are to understand the instructions given by the defendant to Williams, in their natural and obvious sense, they may fairly be construed as a direct admission of an unsettled account, and an implied promise to pay the balance due, if any, and a waiver of any protection under the statute. It is settled that the acknowledgment need not be made to the creditor himself, or even to his agent or servant. Peters v. Brown, 4 Esp. R. 46. Clark v. Hougham, 2 B. & C. 149. Mountstephen v. Brooke, 3 B. & Al. 141. Whitney v. Bigelow, 4 Pick. 110. In Halliday v. Ward, 3 Camp. Rep. 32, A. and B., being joint and several promissors of a note, it was held a letter from A. to B. requesting him to settle the demand, was sufficient to take the case out of the statute.
¶4As the court are clear that the plaintiff's are entiled to recover on this ground, there can be no occasion to express any opinion of what should be the construction of the statute passed in 1832, relative to debtors who are absent from the state.
¶5The judgment of the county court is therefore affirmed.