The judgment of the Supreme Court was entered, May 22d 1876,
Per, Curiam. —
To take a case out of the Statute of Limitations there must be an acknowledgment of the debt as an existing obligation consistent with a new promise to pay it, or an express promise to do so. To be consistent with a promise to pay the debt, the acknowledgment must be such as indicates an intention to pay the' debt existing at the time of the acknowledgment. The time of payment need not be immediate, but the intention to pay must be present. Hence any language inconsistent with this present intention must be inconsistent with a new promise; for a promise, if made at the time of the acknowledgment, necessarily imports a present willingness of the mind to enter into it. If the mind do not then intend, or is not then willing to pay, the very essential element of a contract is wanting. An acknowledgment is less in force than a promise, and hence the necessity of scrutinizing closely the extent of meaning the language of the acknowledgment has. In the present case the defendant, Houser, said, “ Why don’t you see the assignees of Hershman, and get the pro rata ? then he would pay the balance.” To another witness he said, “ Just hold on; that there was no use of making expense; that as soon as he knew what amount was wanting, after the assignees of Hershman would pay the pro rata or dividend hé would pay the balance.” ■ This was an acknowledgment of an existing debt, but does it exhibit an intent to pay the whole note ? This suit is for the entire debt, the whole *86of the note. Clearly it was not the intention of Houser, when he used this language, to pay the whole debt, but a balance only. His promise, which concluded the acknowledgment, was to pay the balance only, not the whole. It contradicts directly a then existing intention to pay the whole, and without this there is no acknowledgment consistent with a new promise to pay the note. It is argued that the promise was absolute for the whole debt, because no dividend was paid from Hershman’s estate. This might be a cogent argument if we were considering an original undertaking for a sufficient consideration, for then the consideration moving to the promisee would assist to interpret his promise. But we are considering no original undertaking, but an acknowledgment to take a debt barred by limitation out of the statute. To do this the debtor must either promise expressly to pay the debt, a promise which the moral consideration would then support, or he must so unqualifiedly admit the debt to be then in full force, that a present and existing intention to pay it can be fairly inferred from all he said. Now a man cannot fairly be said to intend to pay the whole of a debt who expects and asks that a portion of it shall be collected from another. This is the point of the case, and his intention to pay the whole cannot be drawn from the subsequent fact that there was no dividend to be applied to the debt. It would be a confusion of thought to supplement an existing intent by referring it to a posterior circumstance. The application to the case of the maxim id cerium est quod cerium reddi potesi is unsound, for it begs the question, which requires an acknowledgment or a promise which goes to the whole debt, before a balance can be ascertained. Without a dividend there can be no balance.
Judgment affirmed.