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By the Court,

Savage, Ch. J.

Two questions are presented by the bill of exceptions; 1. Whether enough was shewn to take the case out of the statute of limitations; 2. Whether the defendant’s discharge should not have been received.

On the first point there are many contradictory decisions. I consider the law correctly stated by Spencer, justice, in Sands v. Gelston, (15 Johns. R. 520.) “ 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, then it will not be evidence of a promise sufficient to revive the debt and take it out of the statute.” And again, in conclusion, he says, “ though the defendant admits the debt has never been paid, if he protests against his liability, it would be an outrage on common sense to infer a promise to pay in the face of his denial of his liability.” The same doctrine is found in 11 Wheaton, 309, and 1 Peters, 362. In my opinion, therefore, the court erred in inferring a promise. When the defendant said he had paid the note by a running account for his labor, he clearly did not intend to admit a subsisting indebtedness, which is necessary to imply a promise.

On the other point I think the court were in error also. The defendant was entitled to give his discharge in evidence on the general issue. His mistake in describing it when it was superfluous to plead it, ought not to prejudice him. There was no more surprise on the plaintiff than if he had pleaded the general issue only. The judgment must be reversed, and a venire de novo awarded to Saratoga common pleas.

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