Opinion of the Court. justice of the peace who drew the deed to Chadwick, and was present at its execution, gives corroborative testimony as to the payment of the $2150 in bonds and money. Chadwick appears to have been a man of means, and of sufficient ability to have, from time to time, advanced the money claimed to have been represented by the promissory notes. There is nothing to bear against this testimony except surmises and suspicions as to the good faith of the notes, and the parting with the ownership in the bonds and money paid at the time. This distrust of the testimony arises from the proof that Henry Clapp was deemed in the neighborhood to be of doubtful pecuniary responsibility; that his habits were not good, and his refusal to disclose as to the disposition which he had made of the bonds, and of the money for which the notes had been given. We can well see that Chadwick might have furnished money to his daughter's husband, and without security, when but for such relation, he would not have done so. Henry Clapp's reticence as to the disposition made of the money, may be accounted for by the fact of the existence of his old pecuniary embarrassments. Chadwick testifies that the money was advanced from time to time, to be used in the purchase of lands in the newer and more western States. And because of the reason above suggested, Henry Clapp may have been disinclined to tell where his investments were. We regard Chadwick as appearing, from the evidence, to be a purchaser for a valuable consideration. Some stress is laid upon inadequacy of consideration, as affording a presumption of fraud in the purchase. The value of the land was variously estimated by witnesses at from $25 to $45 per acre. The price paid was about $20 per acre. It was a cash purchase. The title was embarrassed by a mortgage in favor of McLean, made by R. W. Clapp in 1855, for some $6000. Syllabus. It is true, that it was claimed to be satisfied, but it remained unsatisfied upon the record, and the witness Arnold, who claimed to represent the mortgage, was, at a time before the purchase, trying to effect a compromise of the mortgage with Henry Clapp. The mortgage was a cloud upon the title, and may, to some extent, have depreciated its value. We can not regard the alleged inadequacy of price as marking the transaction with bad faith. The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion. Decree reversed. CLARA D. CARROLL et al. V. HENRY H. FORSYTH. 1. LIMITATIONS-new promise to take case out of the bar. To remove the bar of the Statute of Limitations, it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay. It must be of such a character as to clearly show a recognition of the debt, and an intention to pay it. 2. SAME-promise to pay by implication. If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, the acknowledgment must contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, or if the expression be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways, they can not go to the jury as evidence of a new promise, to revive the cause of action. 3. Where the promise relied on to remove the statutory bar was not made to the person claiming an indebtedness to him, but to one from whom he had borrowed money, to repay him such loan, and contained no acknowledgment of any indebtedness, and the promise was not shown Opinion of the Court. to have been made in pursuance of an agreement between the debtor and the creditor, or for the express purpose of paying what the defendant owed the plaintiff, and it could be as readily presumed that the promise was intended as a gratuity or as a loan, as that it was intended as a payment, it was held insufficient to take the case out of the statutory bar. 4. SAME-promise to a stranger not sufficient. An express acknowledg ment of indebtedness made by a debtor to one not an agent of the creditor, and who is in no way interested in the debt, and of an intention to pay it, will not be sufficient to take the case out of the operation of the Statute of Limitations. 5. SAME-promise inferred from payment. Where a debtor pays a certain sum to another for his creditor, with the understanding that it shall be treated as a payment on his debt, this will be sufficient to revive the cause of action barred by the statute. In such a case it must be shown that the money was intended as a payment on the party's own indebtedIf it be left in doubt whether such was the fact it will not be ness. sufficient. 6. SAME mere giving credit of payment not sufficient. Where one has an account against another, the whole or a part of which is barred by the Statute of Limitations, he can not take it out of the statute by merely entering a credit. The credit, to have that effect, must be authorized and proved to have been intended as a payment on the account. APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding. This was a claim filed by the appellee, against the estate of Charles Carroll, deceased, for a balance claimed to be due the appellee on account for services. The opinion of the court states the material points and facts. Mr. OBADIAH JACKSON, for the appellants. Mr. JULIUS STARR, and Mr. D. J. SCHUYLER, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court: We propose only to consider the question whether, under the evidence, the Statute of Limitations is a defense to appellee's claim, or any portion of it. His claim is for services as Opinion of the Court. superintendent and bookkeeper, rendered the intestate, in a distillery in Peoria, from 1860, until July 1, 1864. There is no question but that more than five years had elapsed after the claim was due, before the commencement of the suit, but appellee relies upon a payment and subsequent promise within five years. The evidence relied upon to establish the subsequent promise and payment, is that of Robert M. Cox, the brother-in-law of appellee, and the following is the only portion of it which relates to these ques tions: "Carroll came to me once, and asked me how much money I loaned Forsyth, and I told him $3500; and he told me not to ask Forsyth for the money, that he would pay it to me in a short time; that was in the fall of 1864; it was after the business had been wound up. I can not say when they wound their business up, but I had stopped my distillery at that time. I do not know exactly when they did stop their distillery. At several different times after that, he had promised to pay me the money from one time to another; one time that I am positive of was in 1866, in March, I believe. I went to Carroll and told him that I needed the money, and wanted to know if he could let me have some; that was in Peoria I met him at that time, and I told him I was going away, next day, to Kewanee, and he promised me that he would raise some money and give it to Forsyth, or send it to me. In a few days after that I received $500. I I have had conversations a dozen different times. after that, here in Chicago as well. I came here at different times to see him, and to see if I could get the money from him. I think the last conversation was at the Board of Trade in Chicago, and it was either in the fall of 1869 or 1870, I am not positive which, and that he told me he had a large deal in wheat and pork, and just as soon as he wound up that deal he would pay me. 9-69TH ILL. Opinion of the Court. Mr. Carroll told me that he had-just as I stated before— that he had considerable money invested in pork and wheat, and just as soon as he got that deal settled up he would settle and pay me the balance. The only time that I remember of him promising to pay interest, was the first time he came to me and told me not to ask Forsyth for money, that he would pay me, and would pay me interest on the money; I do not think there was any rate of interest mentioned. Q. Now then, Mr. Cox, I will ask you, sir, how Mr. Carroll came to make this promise to you; what was the basis of this promise? A. Well, I do not know; I had nothing to do with Carroll; he came to me himself and told me that he owed Forsyth this money, and that he told him-I think it was before. he went to Washington-that he had told Forsyth to pay me, I suppose, and draw the money out of the business, and when Forsyth came for the money, he told me Carroll was in Washington. Q. What was the amount he agreed to pay? A. $3500. Q. That is the amount that he said he owed Forsyth at that time? A. He didn't state to me he owed him any amount. Q. Was it stated then, generally, that he was indebted to him generally? A. He didn't say anything about the exact amount, but told me that he would pay me $3500 for Henry Forsyth-that was the amount Forsyth was owing me. I paid $3500 to Peter Spencks, the man I bought the house from; I bought it for Forsyth; he said he was owing him, but did not say any particular amount." On cross-examination, he testified further as follows: |