The opinion of the Court was pronounced by
Hutchinson, C. J.
The case allowed by the judges of the county court recites the testimony of one witness, to wit, one Bloss, in support of the issue on the part of the plaintiff, and then recites the decision of the court, that, if this testimony is considered to be true, yet the plaintiffis not entitled to recover. We are called upon to revise that decision ; and the first question presented is whether a new promise will prevent the statute bar in an action of debt on judgement. This question is raised in argument, though not directly so by the pleadings. The plaintiff, in his replication, alleges a new promise within six years before the commencement of the action. A demurrer to this replication would have raised the question directly. But the defendant’s traverse of this replication raises only the question of its truth. *177If it were otherwise, the case must be governed, as to this point, by the decision of Gailer vs. Grinnell, cited from Aikens’ Reports. That replication was supported by the majority of the Court, notwithstanding an objection which I then considered formidable ; it stating the promise to have been made within eight years, which might, itself, have been outlawed two years before the commencement of the action. The replication excludes that objection, by alleging a promise made within six years. The more important question is whether this testimony, supposing it true, amounts to such a new promise as will remove the bar. It is admitted by the counsel,as the result of all the authorities,that an unequivocal . acknowledgement of the debt,unaccompanied by any thing to detract from its force,removes the statute bar. In the present case the defendant told the witness, that the original cause of action was a hard case ; that there was a loss in the property received by him ; that he went to court to defend the suit, but the action was defaulted before he arrived ; that he endeavoured to get the default stricken ofi, but without effect; that he had paid a part of the cost since that time ; and, during the pendency of that suit, he offered the plaintiff a yoke of oxen, telling him that was the best he could do, as he was then poor, and yet is so; that the plaintiff refused to receive the oxen ; that the defendant admitted, in said conversation, that the debt was due, or unpaid, and said he had never paid it; that he was poor and could not pay it, nor any part of it Witness asked him to give his note for the debt: he said it would do no good, for he could pay nothing ; and he declined giving his note. That, since this action was brought, the defendant stated the same things to the witness. Now, we can make nothing of all this short of an unequivocal-acknowledgement that the debt was due and unpaid. The defendant spoke, it is true, of its being a bard case in the outset: but we can go no farther back than the judgement. That established the debt beyond dispute, at that time. His acknowledgements show it neverjwas paid since it passed into a judgement. The modern cases cited at the bar for the defendant are not parallel with this. The case of a special conditional promise to pay when he should be able, requires proof of his ability to pay, in order to remove the bar. The three penny stamp case seems farther off still; for, when the defendant said that he owed the debt, but would never pay it, he added a reason, which, if true, showed that he never was legally bound to pay it. The late cases in England lean against the more ancient decisions ■which admitted almost any conversation about a debt, that did not *178expressly affirm it to have been paid, to be sufficient to take it oust of the statute. We are not disposed to go the length of those ancient decisions. But we are ready to decide, that an. acknowl-edgement that the debt is due and unpaid, without the addition of any expression intimating that the debtor is not liable to pay it, does remove the statute bar. And we think the case before us is one of this description. The defendant’s allusions to his poverty contain no implied denial of his liability, and do not at all difference the case from what it would be without them. He does not say the debt is not paid, and he is not liable to pay it, or will not pay it; but that it is not paid, and he is not able to pay it.
J. Mattocks, for plaintiff.
Geo. B. Shaw, for defendant.
Were this case new in principle, we should consider well before we should go this length. But this principle, to the extent we now carry it,, seems to,come down to.us as. common law, adopted by our statutes,, and has. been treated as. such in, all, the decisions in this state. We must now treat it as law.. If it is not the best practicallaw forthisstate,thelegislature can pass a prospective statute, and so regulate the matter as to do no injury to any person.
The judgement of the county court i§ reversed, and a new trial is granted.