¶1In the 32d year of Charles II., the court of King’s bench held, that a promise to pay took a case out of the statute of limitations; but that a simple acknowledgment of the debt did not.(t) But in the 10th year of William III. it was held, that although an acknowledgment of the debt was not in itself a promise, yet it was evidence of a promise to be left to a jury. 1 Ld. Ray. 421, Hyleing vs. Hastings.—Carthew 470, S. C. — Comyn’s Rep. 54, S. C. Had courts constantly adverted to this distinction, there would have been much less confusion in the books on this subject than is at present to be found. The better opinion is at this day, that a simple acknowledgment of the debt does not take a case out of the statute ; but such acknowledgment is evidence from which a jury may, if there be nothing to rebut it, presume a promise to pay, which will take the case out of the statute. But if the defendant, when he admits the debt, declares that he does not intend to pay, or that he intends to avail himself of the statute, the presumption of a promise to pay, resulting from the admission of the debt, is rebutted by the express declarations of the defendant, and a jury would not be at liberty to presume a promise against such declarations. 15 John. 511, Sands vs. Gilston.—13 ditto 288, 510.—5 Binn. 573, Jones vs. Moose.—11 John. 146, Danforth vs. Culver.—10 ditto 35, Dean vs. Pitts.—8 ditto 407, Bush vs. Barnard.—4 Es. N. P. cases, 36, Davis vs. Smith.—4 John. 461, Sluby vs. Champlin.—4 East 599, Bryan vs. Horseman.— 2 D. & E. 760, Lloyd vs. Maund.-8 Mass. Rep. 103, Baxter vs. Pennimun.
¶2In the present case, the biiacticn of. the court to the jury was clearly wrong. There was an express promise by the defendant to pay, if he made the note. And we are. all.of opinion that there musí be
¶3A new trial granted.