doth not tender so much as he really does owe. (w) To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff's demand on the one hand; but on the other sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and in case he pleads such set-off, must pay the remaining balance into court. This answers *very nearly to the compensatio or [*305] stoppage, of the civil law, (x) and depends on the statutes 2 Geo. II, c.

22, and 8 Geo. II, c. 24, which enact, that where there are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the trial; which shall operate as payment and extinguish so much of the plaintiff's demand. (19)

(w) Sp. L. b. 6, c. 4.

(x) FJ. 16, 2, 1.

(19) To be the subject of set-off, the claims must be mutual debts for the recovery of which indebitatus assumpsit or debt would lie. Howlet v. Strickland, Cowp. 56; Austin v. Feland, 8 Mo., 309; Jones v. Blair, 57 Ala., 457. A set-off is allowed only when the suit is based on a demand which could itself be used as a set-off. Downer v. Eggleston, 15 Wend., 51. If the claim is one arising from a tort there can be no set-off. Sapsford v. Fletcher, 4 T. R., 511; Canal Co. v. Buckley, 7 T. R., 36; Hall's Appeal, 40 Pa. St., 409; Pulliam v. Owen, 25 Ala., 492; Schweizer v. Weiker, 6 Rich., 159; Mitchell v. Gibbes, 2 Bay, 351. One tort cannot be set off against another at common law. Hart v. Davis, 21 Tex., 411. Even if a statute allows such set-off, a claim arising from tort cannot be set off against one arising ex contractu. Smith v. Printup, 59 Ga., 610; Zeigelmueller v. Seamer, 63 Ind., 488; Indianapolis, etc., R. R. Co. v. Ballard, 22 Ind., 448; Dean v. Allen, 8 Johns., 891. Judgments may be the subject of set-off. Thus a judgment for costs may set off against a subsequent judgment for damages. Dennie v. Elliott, 2 H. Bl., 587. Where the demands have passed into judgments and each party has an execution in his own right against another, the judgments are mutual debts. It is not necessary to notice the grounds of action on which the judgment is founded. Shapley v. Bellows, 4 N. H., 347. See Hutchins v. Riddle, 12 N. H., 464.

Set-off is wholly inapplicable in actions for unliquidated damages. Unless the claim declared on is capable of being ascertained by calculation and is thus the subject of set-off itself, no set-off can be pleaded. Osborn v. Etheridge, 13 Wend., 339; Hutchinson v. Reid, 3 Camp., 319; State v. Welsted, 6 Halst., 397; Smith v. Warner, 16 Mich., 390, Hardcastle v. Netherwood, 5 B. and Ald., 93. A claim arising simply from tort, or one foriunliquidated damages cannot be used as a set-off. Hopkins v. Magquire, 35 Me., 78; Homas v. McConnell, 3 McLean, 381; Grimes v. Reese, 30 Ga., 330. To be effectual as a set-off the demand must be a valid subsisting claim not barred by the statute of limitations when the suit is begun. Lee v. Lee, 31 Ga.. 28; Williams v. Gilchrist, 3 Bibb., 49; Taylor_v. Gould, 57 Pa. St., 157; Mandigo v. Mandigo, 26 Mich., 349; Chapple v. Durston, 1 Cr. and J., 1.

There must be mutuality and reciprocity in the rights set off, and the demands on the one side and on the other must be in the same right. Gibbs v. Cunningham, 4 Md., ch. 322; Kinne v New Haven, 32 Conn., 210. No other demands can be set off than such as are mutual, that is, between the same parties in the same right. In the application of this rule in some cases the real and not the merely nominal parties plaintiff and defendant are regarded. Goodwin v. Richardson, 44 N. H., 125. The debtor on one side must be the same as the creditor on the other, either as the nominal or real party in interest. Hendricks v. Toole, 29 Mich., 340. If executors sue for a debt arising after the death of their testator, the defendant cannot set off a debt due from the testator. Shipman v. Thompson, Willes, 103; Shaw v. Gookin, 7 N. H., 16; Dale v. Cooke, 4 Johns. Ch. 11, Fry v. Evans, 8 Wend., 530. If executors sue on a claim due their testator in his lifetime, the defendant cannot set off claims against the plaintiffs accruing since the death. Houston v. Robertson, 4 Camp., 342. Where an administrator as such sued for a debt due after the death of the intestate, it was held that the defendant could not set-off a debt due him from the intestate while alive, as it was necessary that the debts should have originally existed between the two living parties. Watts v. Rees, 9 Exch., 696; 11 Exch., 410. But to an action by an administrator on a claim arising during the intestate's life, the defendant was allowed to plead as set-off a payment by himself of a bond on which he was surety for the intestate. Bucher v. Dorsheimer, 7 S. and R., 9. In general it is not allowed to set off against an individual debt a demand arising to a person in a representative capacity, or vice versa, Snow v. Conant, 8 Vt., 301; Stickney v. Clement, 7 Gray, 170; Thomas v. Hopper, 5 Ala., 442; Crabtree v. Cleatt, 22 Ala., 181. So where an administrator sues in his own right, the

Pleas that totally deny the cause of complaint, are either the general issue, or a special plea, in bar.

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass, either in vi et armis or on the case, non culpabilis, not guilty; (y) in debt upon contract, nihil debet, he owes nothing; in debt on

(y) Appendix, No. II, § 4.

defendant cannot set off a debt due him from the intestate in his life-time. Grew v. Bur. ditt, 9 Pick., 265; Wolfsberger v. Bucher, 10 S. and R., 10.

In an action against two jointly, the individual claim of one defendant against the plaintiff cannot be set off unless the other defendant is a mere surety. Woods v. Carlisle, 6 N. H., 27; Ross v. Knight, 4 N. H., 236; Banks v. Pike, 15 Me., 268. In general joint demands cannot be set off against several demands, nor separate debts against joint debts. Howe v. Sheppard, 2 Sumn., 409; Jackson v. Robinson, 3 Mason, 138; Bebb v. Saunders, 3 Bibb, 86; Millburn v. Guyther, 8 Gill, 92; Heckenkemper v. Dingwelirs, 32 Ill., 538; Sager v. Tupper, 38 Mich., 258. So in a suit for an individual debt, the defendant cannot set off a claim against a firm of which the plaintiff was formerly a member. McDowell v. Tyson, 14 S. and R., 300; Wilson v. Keedy, 8 Gill, 195; Warren v. Wells, 1 Met., 80. Against a claim by partners jointly the defendant cannot set off a debt due him from one of the firm individually, nor in a suit against one partner individually, can a claim against the plaintiff owned by the firm be set off. Ross v. Pearson, 21 Ala., 473; Jones v. Blair, 57 Ala., 457.

A surviving partner to whom all right of action survives can set off a debt to him individually in an action brought against him as such surviving partner for the recovery of a debt due from the partnership. Johnson v. Kaiser, 40 N. J., 286. A debt due from the plaintiff as surviving partner to the defendant can be set off by the latter against a demand which the plaintiff has as an individual. French v. Andrade, 6 T. R., 582. So a debt due the defendant as surviving partner may be set off against a demand upon him in his own right. Stipper v. Stidstone, 5 T. R., 493.

If goods are bought from an agent known to be such, in an action by the principal for the price a debt due defendant from the agent cannot be set off. Browne v. Robinson, 2 Caines Cas.. 341. So if an agent be appointed to collect a debt, the debtor cannot set off against the debt due the principal a debt due him from the agent. Wilson v. Codman, 3 Cranch, 193. Where a principal permits an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to be placed in the same position at the time of the disclosure of the real principal as if the agent had been the real contracting party, and is entitled to the same defense. In such case the defendant may set off a claim against the agent. Isberg v. Bowden, 8 Exch., 852; George v. Claggett, 7 T. R., 359; Carr v. Hinchliff, 4 B. and C., 547.

That in an action by a trustee a debt due the defendant from the cestui que trust may be set off, sce Sheldon v. Kendall, 7 Cush., 217; Campbell v. Hamilton, 4 Wash. C. C., 92; Goodwin v. Richardson, 44 N. H., 125; contra Wheeler v. Raymond, 5 Cow., 231.

The claim to be set off must have been a subsisting right of action in the defendant, a debt due and demandable, when the suit was brought. The debt must have arisen before the action: it is not enough if before plea pleaded merely. Evans v. Prosser, 3 T. R., 186; Richards v. James, 2 Exch., 471; Morrison v. Moreland, 15 S. and R., 61; Carpenter v. Butterfield, 3 Johns. Cas., 145; Bank v. Chapman, 19 Johns., 322; Hardy v. Coons, 21 N. H., 356; Martin v. Kunzmueller, 37 N. Y., 396; Houghton v. Houghton, 37 Me., 72; Henry v. Butler, 32 Conn., 140.

By many of the state statutes if the set-off prove greater than the plaintiff's claim, the defendant may have judgment for the balance. Good v. Good, 9 Watts, 567. Under the English statutes this could not be done. Hennell v. Fairlamb, 3 Esp., 104. These state statutes, though based on the English enactments vary from one another, and should be referred to to determine the right to set off in any particular state, and the proper method of pleading it.

Recoupment.-Wherever by a contract mutual duties and obligations are laid upon two parties, and one sues for a breach by the other, the defendant may meet the demand by a counter-claim for a breach of duty by the plaintiff. This is called recoupment. 2 Pars. on Con. 247. It differs from set-off, in that the damages recouped must grow out of a breach of the same contract on which suit is brought: Batterman v. Pierce, 3 Hill, 171; Stow v. Yarwood, 14 Ill., 424; also in that the damages may be unliquidated, and the defense may be made in cases of tort, provided the tort springs from the violation of contract. Stow v. Yarwood. supra.

If the defendant's damages exceed the claim established by the plaintiff, the action will thereby be defeated, but the defendant cannot have judgment for the excess. Britton v. Turner, 6 N. H., 481; Ward v. Fellers, 3 Mich., 281.

bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul disseisin, no disseisin; and in a writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue: by which we mean a fact affirmed on one side and denied on the other.

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprise the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be thus specially pleaded, may be given in evidence upon the general issue at the trial. But the science *of

[*306] special pleading having been frequently perverted to the purposes of

chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case; and have allowed special matter to be given in evidence at the trial. And though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness anciently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.

2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action. (z) A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

Also, a man may plead the statutes of limitation (a) in bar; (20) or the time

(20) It has generally been held that the statute of limitations bars the remedy only, not the right. Higgins v. Scott, 2 B. and Ad., 413; Eastman v. Foster, 8 Met., 19; Elkins v. Edwards, 8 Ga., 325; Wood v. Augustine, 61 Mo., 46; Kellar v. Sinton, 14 B. Mon., 307; Birnie v. Main, 29 Ark., 591; Richmond v. Aiken, 25 Vt., 324; Hough v. Bailey, 32 Conn., 288; Knox v. Galligan, 21 Wis., 470; Ohio, &c., Co. v. Winn, 4 Md. Ch., 253; Boist v. Corey, 15 N. Y., 505; Crooker v. Holmes, 65 Me., 195; Fisher v. Mossman, 11 Ohio St., 42. But in some states the opposite doctrine prevails. Ross v. Mitchell, 28 Tex., 150; Peters v. Dunnells, 5 Neb., 460; Newman v. De Lorimer, 19 Iowa, 243; Hagan v. Parsons, 67 Ill., 170; Chick v. Willetts, 2 Kan., 384. So under the later English statutes it has been held that the right was barred. Society v. Richards, 1 Dru. and W., 289; De Beauvoir v. Owen, 5 Exch., 166.

The statute begins to run when the party has a complete present right of action on which he may sue at once. Little v. Blunt, 9 Pick., 488; Railroad Co. v. Parks, 33 Ark., 131; Wittersheim v. Countess, &c., H. Bl. 631; Hemp v. Garland 4 Q. B., 519. In contract the time runs from the time when the contract was broken, though no special damage immediately results; not from the time when the damage is first felt. Battley v. Faulkner, 3 B. and Ald., 288; Bonesteel v. Van Etten, 20 Hun, 468. So in tort for incompetency or carelessness in professional employments, the time runs from the time when the service was performed. Troup v. Smith, 20 Johns., 33. In equity, however, in the case of fraud, the statute is held to run only from the discovery of the fraud. Hovenden v. Lord Annesley, 2 Sch. and Lef., 634; Todd v. Rafferty, 30 N. J. Eq., 254. Where one collects money for another which he is bound to pay over at once, the statute runs from the time he collects it. Cagwin v. Ball, 2 Ill. App., 70. So where surety claims contribution from a co-surety for payment on behalf of the principal, the statute

limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII, c. 2, in a writ of right, is sixty years: in assizes, writs of entry, or other possessory actions real, of the seisin of one's ancestors, in lands; and either of their seisin, or one's own, in rents, suits and services, fifty years: and in actions real for lands grounded

begins to run against his claim from the time of payment, as he then acquired a right of action. Singleton v. Townsend, 45 Mo., 379. The statute runs in the case of a voidable contract from the time when one party terminates it: Collins v. Thayer, 74 Ill., 138; against a claim for money paid as usurious interest from the time when paid: Stephens v. Monongahela Bank, 88 Penn. St., 157; against a claim where a demand is necessary, immediately after such demand: Topham v. Braddock, 1 Taunt., 571; Stafford v. Richardson, 15 Wend., 302; Little v. Blunt, 9 Pick., 488; against a claim payable so many days after sight or demand, not till the expiration of the given days. Wolfe v. Whiteman, 4 Harr., 246; McDonnell v. Bank, 20 Ala., 313. But against a promissory note payable on demand, the statute runs from the delivery of the note. Norton v. Ellam, 2 M. and W., 461; Presbrey v. Williams, 15 Mass., 193; Litttle v. Blunt, 9 Pick., 488. Where one agrees to pay whenever his circumstances would enable him to do so, and he might be called upon for that purpose, held that the creditor had a complete right of action when the debtor became able to pay, not merely when he discovered the fact, and that the fact of bringing an action would be a sufficient demand. Waters v. Earl of Thanet, 2 Q. B., 757. So in case of conversion the statute runs from the time of the converting, not from the time when the injured party learned of it. Granger v. George, 5 B. and C., 149. If goods delivered to a carrier are destroyed, the statute runs from date of destruction, not from date of delivery. Merchants, etc., Co. v. Topping, 89 Ill., 65. In computing the time, the day on which the cause of action accrued is excluded, according to the weight of authority. See cases collected and discussed in Warren v. Slade, 23 Mich., 1.

To put the statute in motion there must be some one in being capable of being sued: Davis v. Garr, 6 N. Y., 124; Wenman v. Mohawk Ins. Co., 13 Wend., 267; and some one capable of suing, so that the statute does not run against the estate of a deceased person for a debt coming due after death till an administrator is appointed. Murray v. East India Co., 5 B. and Ald., 204; Bucklin v. Ford, 5 Barb., 393. If, when the right of action accrues, one is disabled from suing, as from infancy or coverture, the statute does not run till the disability is removed. Demarest v. Wynkoop, 3 Johns. Ch., 129. Cumulative disabilities are not regarded. If a female is an infant when a right of action accrues, and marries before her majority, she must bring her action within the time limited after the removal of this disability of infancy. This begins to run as soon she attains her majority without regard to the subsequent disability of coverture. Demarest v. Wynkoop, 3 Johns. Ch., 129; Fritz v. Joiner, 54 Ill., 101; Keil v. Healey, 84 Ill., 104; Mercer v. Selden, 1 How., 37; Cozzens v. Farnam, 30 Ohio St., 491. So where a married woman, to whom a right of action has accrued, dies leaving a surviving husband, her heirs have the same time in which to sue after the termination of the husband's tenancy by the, curtesy as the wife would have had after the husband's death if she had survived him, and this, though the heirs may be under a disability when tenancy by the curtesy ceases. Henry v. Carson, 59 Pa. St., 297. A wife who joins her husband in a mortgage is not protected by her coverture from the ordinary effect of the adverse possession of the mortgagee. Hanford v. Fitch, 41 Conn., 487. If in a joint action some plaintiffs can avoid the plea of the statute by showing a disability, but all can not, the action is barred, since if the statute once runs against one of two joint parties it operates as a bar to a joint action. Marsteller v. McClean, 7 Cranch, 156. By the old English statutes repealed by 19 and 20 Vict.. c. 97, s. 10, and by most of the American statutes, if either party is absent from the country or state when the right of action accrues, the statute does not begin to run till he returns. This applies to foreigners or persons permanently residing beyond the jurisdiction, as well as to residents temporarily absent. Such persons, if creditors, have the statutory time after coming to the country or state, in which to begin an action, and if they are debtors, their debt is not barred till six years after such arrival. Strithorst v. Graeme, 2 W. Bl., 723; Williams v. Jones, 3 Wils., 145; Lafond v. Ruddock, 13 C. B., 813; Fowler v. Hunt, 10 Johns., 464; Dwight v. Clark, 7 Mass., 515; Goetz v. Voelinger, 99 Mass,, 504. Where a New York citizen sued in Vermont another New York citizen temporarily in Vermont, for a debt barred by the New York statute, held the case was within the foregoing principle, and that the plaintiff might recover. Graves v. Weeks, 19 Vt., 178. Where a person did business in New York, but lived in New Jersey, going back and forth every day, so that the time actually spent by him in New York was less than six years, held that the New York statute of limitation did not run in his favor so far as to bar a debt contracted more than seven years before action. Bennett v. Cook, 43 N. Y., 537. There has been much discussion as to what return is sufficient to set the statute in motion. It is now settled by the weight of authority that "a return in order to cause the time limited for bringing suit, to commence and keep running during his stay, must be shown by the debtor either to have been actually known to

upon one's own seisin or possession, such possession must have been within thirty years. By statute 1 Mar. st. 2, c. 5, this limitation does not extend to any suit for advowsons, upon reasons given in a *former chapter. (b) [*307] But by the statute 21 Jac. I, c. 2, a time of limitation was extended to

(b) See page 250.

the creditor, and to have been so long continued and under such circumstances after such knowledge, as to have enabled the creditor by reasonable diligence to have subjected him to the jurisdiction of the proper state court; or else to have been so notorious and protracted, and so identified with some locality, as to show that the creditor might with reasonable diligence have learned of the debtor's return or non-absence; and by the like diligence after such fact could have been learned, might have subjected him to the jurisdiction as before stated." Campbell v. White, 22 Mich., 178; Hacker v. Everett, 57 Me., 548; Milton v. Babson, 6 Allen, 322; Hill v. Bellows, 15 Vt., 727; Whitton v. Wass, 109 Mass., 40; Fowler v. Hunt., 10 Johns., 464; White v. Bailey, 3 Mass., 271. Successive absences may be deducted from the time limited for bringing suit, and successive visits to the state may be reckoned as time when the statute is running. Campbell v. White, 22 Mich., 178; Cole v. Jessup, 10 N. Y., 96; Rogers v. Hatch, 44 Cal., 280. In such case after deducting the aggregate of all absences the time spent in the state must be that prescribed by the statute to bar an action. Conrad v. Nall, 24 Mich., 275. If the statute once begins to run there is no deduction for absence which does not amount to a change of domicile. Whitton v. Wass, 109 Mass., 40. In cases other than those of absence, if the statute once begins to run, nothing stops it. Hogan v. Kurtz, 94 U. S., 773; Young v. Mackall, 4 Md., 362; Peck v. Randall, 1 Johns., 165; Pendergrast v. Foley, 8 Ga., 1. If the statute begins to run in the lifetime of an intestate, in the absence of statutory provision it does not cease to run after the death and before an administrator is appointed. Sanford v. Sanford 62 N. Y., 553; and see Ruff v. Bull, 7 Harr. and J., 14.

By statute 21 Jac. I, c. 16, "all actions of account or upon the case other than account as concerning the trade of merchandise between merchant and merchant, their factors or servants," were to be brought within six years from the time the cause of action accrued. In England this exception in favor of merchants is held to extend only to actions of account or on the case for not accounting. Inglis v. Haigh, 8 M. & W., 769, but the American authorities allow the privilege as well in actions of assumpsit as of account or case. Mandeville v Wilson, 5 Cranch, 15; Dyott v. Letcher 6 J. J. Marsh., 541; McLellan v. Croften, 6 Me., 307. The account must be current and mutual, must concern the trade of merchandise between merchant and merchant, not between merchant and customer. Spring v Gray, 6 Pet. 151; Coster v. Murray, 5 Johns. Ch., 522; Blair v. Drew, 6 N. H., 235. But the action of account may be between partners. Todd v. Rafferty 30 N. J. Eq., 254. To constitute a mutual account there must have been a "mutual or alternate course of deal." Credit must have been given by each party to the other, founded on some indebtedness, or there must have been an agreement for a set-off of mutual debts. It is not enough if all the credit items are on one side. Kimball v. Kimball, 16 Mich., 211.

By statute 19 and 20 Vict., c. 97. s. 9, this privilege in relation to merchants' accounts is abolished, and actions on them must be brought as in other cases.

If a right of action is barred, there must be one of three things to take the case out of the statute. Either there must be an acknowledg nent of the debt from which a promise to pay is to be implied; or, second, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt and evidence that the con- . dition has been performed. In re River Steamer Co., L. R., 6 Ch. App., 822; Skeet v. Lindsay, L. R., 2 Exch. Div., 314. "If the bar is sought to be removed by proof of a new promise, the promise as a new cause of action ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate, and if any conditions are annexed, they ought to be shown to be performed." "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 ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay." If accompanying circumstances repel the presumption of a promise, or the expressions are vague, the acknowledgment will not suffice to remove the bar. Bell v. Morrison, 1 Pet., 351. If the acknowledgment does not specify the amount admitted to be due, it must refer to something by which that amount can be definitely ascertained. Miller v. Baschore, 83 Pa. St., 356. In the same line are, Hart v. Prendergast 14 M. & W., 741; Chambers v. Rubey, 47 Mo., 99, Simonton v. Clark, 65 N. C., 525; McClelland v. West, 59 Pa. St., 487; Carroll v. Forsyth, 69 Ill., 127; Wetzell v. Bussard, 11 Wheat., 309; Carruth v. Paige, 22 Vt., 179; Stafford v. Richardson, 15 Wend., 302; Barnard v. Bartholomew, 22 Pick., 291; Bangs v. Hall, 2 Pick., 368, where many old English cases contra are cited and disapproved. But see Hall v. Bryan, 50 Md., 194. "I cannot pay the debt at present, but I will pay it as soon as I can," is not such a promise as to raise the bar without proof of ability. Tanner v. Smart, 6 B. & C., 603. Where one says in effect "make out an account fully and I will pay if correct," this would raise the bar, as acknowledging that some debt