¶1*486The opinion of the court was delivered by
¶2It.is now well settled that an acknowledgement of a debt is sufficient to take it out of the statute of limitations, though there has been no new promise. 12 Yin. 192; 2 Sand. 64, note; 11 Johns. 146,
¶3In the case before us, the defendant plainly acknowledged the note to be his, which takes it out of the statute; but said he would not pay it, because given for rotten tobacco, and yet that he would not plead the statute. Here then he takes upon himself the burthen of shewing a want of consideration, al’ter acknowledging the debt. It is, in my opinion, precisely like the case of Dean vs. Pitts, 10 Johns. 35, where the maker of a note admitted it to be his, but said he would make it appear that it had been paid; which was held to cast upon-him the necessity of proving payment. The motion is refused.