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offers to pay the principal, but refuses to pay the interest, it has been held that the statute bar is removed as to the principal, but not as to the interest; and, under the rule now adopted as to conditional acknowledgments, it is questionable whether the statute is removed as to any part of the debt, unless the creditor signifies his acceptance of the offer, when made.2

SEC. 74. Effect of Acknowledgment. An acknowledgment or new promise only operates to keep the debt on foot for six years from the time when the acknowledgment or promise was made. After the lapse of that period it has no effect against the statute.

SEC. 75. Offer to pay in Specific Property. — A question may arise as to the effect of a promise to pay a debt barred by the statute in specific articles, as, "If you will take your pay in wheat, I will pay you," or, "If you will take your pay in work, I will pay you," &c. Now, upon the theory upon which the law relating to acknowledgments and promises rests, the creditor can require no more than the debtor agrees to do; and there can be no question but that, in order to save his debt from the operation of the statute, he takes the burden of showing that he not only accepted the offer, but also that he was ready to accept the pay in the mode named by the debtor. To this extent the courts in New York have gone; but it seems to us that, if no time is fixed upon within which such payment is to be made, the creditor must go farther, and show that he called upon the debtor for the specific property, or to perform the labor, and that he refused to do so, unreasonably, before he can enforce his claim against him for the amount of his claim in money. Such would seem to be the legitimate effect of the new promise. A part payment in property made upon a debt barred by the statute operates as an acknowledgment of the entire debt, in the absence of any restrictive words. Thus, in an English case, the defendant was sued for the price of hay sold to the wife

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1 Graham v. Keys, 29 Penn. St. 189; McDonald v. Gray, 29 Tex. 80; Collyer v. Willcock, 4 Bing. 315.

2 In Allcock v. Ewan, 2 Hill (S. C.) 326, the rule was accurately stated thus: "If an offer is made differing from the terms of the original contract, it must be accepted by the other party in order to revive the original debt." An admission as to part of a debt has been held good as to such part. Oliver v. Gray, 1 H. & G. (Md.) 204; Gray v. Lawridge, 2 Bibb (Ky.), 284. But where a debtor, to whom application for payment was made, said it was impossible for him to pay, but offered to mortgage certain real estate to pay the debt, and to pay the interest every ninety days, which offer the creditor did not

accept, it was held that this did not take the case out of the statute. Exeter Bank v. Sullivan, 6 N. H. 124. So where the maker of a note authorized an agent to offer thirty dollars for the note, and the offer was not accepted, it was held not to amount to a promise sufficient to take the case out of the statute of limitations; and the fact that the maker said that he owed the debt, but was not then able to pay it, but that he was determined to pay it, was held not to be evidence of an unconditional promise to pay. Atwood v. Coburn, 4 N. H. 315.

407.

8 Munson v. Rice, 18 Vt. 53.

4 Bush v. Barnard, 8 Johns. (N. Y.)

5 Hooper v. Stevens, 4 Ad. & El. 71.

before marriage, and he set up the statute of limitations. On the trial before LORD DENMAN, C. J., the plaintiff, to take the case out of the statute, proved that, after the delivery of the hay, and within six years of the commencement of this action, the wife, who was then single, and kept a public-house, said to the plaintiff," Mr. Hooper, you must make use of some spirit, I know; why not have it of me? As long as I owe you money for hay, if it is ever so little, it will be a way to lessen the debt." The plaintiff said he would take a gallon of gin at 12s., and a jar filled with gin was sent to him. It was contended that this delivery of goods by the wife was equivalent to a part payment, and barred the statute. On the other hand, it was urged that the delivery could not operate as a payment, inasmuch as the defendants, if now suing for the price of the spirits, could only declare as for goods, and not for a liquidated sum of money. The court held, upon the authority of a previous case in the same court,1 that the delivery of the goods, under these circumstances, operated to remove the statute bar as to the residue of the debt, as it was clearly an acknowledgment of the debt from which a promise to pay the balance thereof could be implied.

SEC. 76. Promise not to plead the Statute. While a promise not to plead the statute, whether made before or after the debt is barred, does not amount to an acknowledgment thereof or a promise to pay it, yet, if made before the debt is barred, and in consideration of forbearance to sue, and the creditor does forbear to sue upon the faith of the promise, it is binding upon the debtor, and at least has the effect to keep the debt on foot until the statutory period, dating from such promise, expires, either by way of estoppel, or as a conditional promise to pay the debt in case the plaintiff proves it. But after a debt is actually barred by the statute, a mere naked promise not to plead the statute has no validity, as it is a mere nudum pactum. In order to be operative it must be predicated on a new consideration." An admission as

1 Hart v. Nash, 2 C. M. & K. 337.

2 Paddock v. Colby, 18 Vt. 485; Smith . Leper, 10 Ired. (N. C.) 86; Cooper v. Parker, 25 Vt. 502; Randon v. Toby, 11 How. (U. S.) 493; Brown v. State Bank, 5 Ark. 134.

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ing his right of action, if it should be wanted." PATTESON, J., said: "The defendant admits something to be due, though he does not agree with the plaintiff as to the amount; but he says, 'I will not avail myself of the statute, and will put it out of my power to do so.' That, if taken alone, makes a promise. The expressions which follow do not qualify that promise." ✦ Burton v. Stevens, 24 Vt. 131.

Smith's Leading Cases, Am. note, 318; Allen v. Webster, 15 Wend. (N. Y.) 289; Utica Ins. Co. v. Bloodgood, 4 id. 652. In Gardner v. M'Mahon, 3 Q. B. 561, referred to in the text, LORD DENMAN said: Stockett v. Sasser, 8 Md. 374; Steele "When the debtor says before the six v. Jennings, 1 McMull. (S. C.) 297; Brown years have passed, which seems to me an v. Edes, 37 Me. 318. In Warren v. Walkimportant circumstance, 'I will waive the er, 23 Me. 453, the defendant in writing statute,' it may well be supposed that the agreed to "waive all defence which a creditor on his part has forborne to sue, party might otherwise make under the relying upon this undertaking as preserv- statute of limitations," and it was held

follows, "I do not wish to avail myself of the statute of limitations," was held insufficient.1 Usually, perhaps, where there is a promise not to plead the statute, there will be found in the context something further which will amount to an acknowledgment of indebtedness from which a promise to pay may be implied; but in the absence of such context it seems on the authority of the cases cited, and upon a strict application of the present theory as to the principles of the doctrine of acknowledgment, that a promise not to take advantage of the statute will have no efficacy in itself as an acknowledgment of a debt. Such a promise, however, where it is supported by a consideration, and is not a mere nudum pactum, may amount to an agreement, for the breach of which damages may be recovered. And it must be borne in mind that if the promise not to take advantage of the statute be made within six years, and while the debt is still recoverable, the forbearance to sue will be itself a sufficient consideration. It may, however, be argued that any such promise must be disregarded as frustrating the policy of the statutes, and as being contrary to the rule that prescription cannot be renounced in advance.

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It might, indeed, at first sight seem that a promise not to take advantage of the statute amounted practically to a promise to pay the debt in question; and it seems to have been so considered in an English case, where the promise was, "As you have mentioned the limitations act, I answer at once that I am ready to put it out of my power to take advantage of that act, and will immediately give you my note for whatever amount is due you. To pay you now, or within the year, I am utterly unable." It is obvious, however, that a promise not to plead the statute in an action is not inconsistent with an intention to defend the action upon its merits; and a promise in the following terms, "I hereby debar myself of all future plea of the statute," was held not sufficient.1

SEC. 77. Conditional Acknowledgment. If a debtor annexes any qualification or condition to his acknowledgment or promise, it will not be operative to remove the statutory bar without proof of its performance; and a contrary rule would nullify the principle upon which the

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not sufficient to prevent him from setting up the statute; and a similar doctrine was held in the case of Brown v. Edes, ante.

1 Rackham v. Marriott, 2 H. & N. 196. 2 East India Co. v. Paul, 7 M. P. C. C. 85. In this case it is distinctly laid down by LORD CAMPBELL that there might be an agreement that, in consideration of an inquiry into the merits of a disputed claim, no advantage should be taken of the statute of limitations in respect of time employed in the inquiry, and that an action might be brought for breach of such agree

ment.

Gardner v. M'Mahon, 3 Q. B. 561.

4 Waters v. Earl of Thanet, 2 Q. B.

757.

5 In the case of Wetzell v. Bussard, 11 Wheat. (U. S.) 309, MARSHALL, C. J., in delivering the opinion of the court, said: "We think, upon the principles expressed by the court in the case of Clementson v. Williams, 8 Cranch (U. S. C. C.), 72, that an acknowledgment which will revive the orig inal cause of action must be unqualified and unconditional, it must show positively that the debt is due in whole or in part. If it be connected with circumstances which in

doctrine relating to acknowledgments rests. It is not the acknowledgment of itself which revives the debt, but the promise which the law

any manner affect the claim, or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration; or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown. In the case at bar, the defendant said to one witness that if the plaintiff had come forward and settled certain claims the defendant had against him, he would have given him his powder; and to another he said, he should be ready to deliver the powder whenever the plaintiff settled a suit which Doctor Ewell had brought against defendant in the court of Alexandria, on account of a patent-right and machine sold to him by the plaintiff.' These declarations do not amount to an unqualified and unconditional acknowledgment that the original debt was justly demandable. They assert a counter-claim on the part of the defendant, which he was determined to oppose to that of the plaintiff. He did not mean to give validity to the plaintiff's claim, but on condition that his own should be satisfied. These declarations, therefore, cannot be construed into a revival of the original cause of action, unless that be done on which the revival was made to depend. It may be considered as a new promise, for which the old debt is a sufficient consideration, and the plaintiff ought to prove a performance, or a readiness to perform, the condition on which the promise was made." Bell v. Morrison, 1 Pet. (U. S.) 251, where the case of Wetzell v. Bussard is cited, and the doctrine there settled, declared by STORY, J., in delivering the opinion of the court, to be "the only exposition of the statute which is consistent with its true object and import." In Seaward v. Lord, 1 Me. 163, where the maker of a promissory note denied his signature, declaring the note to be a forgery, but said that if it could be proved that he signed the note he would pay it, and it was proved at the trial that he did sign it, it was held sufficient to take the case out of the statute of limitations. So in Stanton v. Stanton, 1 N. H. 425, the defendant was sued upon

a note of hand, and pleaded the statute of limitations. It was proved that he made the note, and that the same had been presented to him within six years, when he said, “that he did not recollect giving the note; but if he did, he would pay it, its being outlawed should make no odds;" this was held sufficient to take the case out of the statute. In Tanner v. Smart, 6 B. & C. 603, in assumpsit brought to recover a sum of money, the defendant pleaded the statute of limitations, and upon that issue was joined. At the trial the plaintiff proved the following acknowledgment by the defendant within six years: "I cannot pay the debt at present, but I will pay it as soon as I can." It was held that this was not sufficient to entitle the plaintiff to a verdict, no proof being given of the defendant's ability to pay. In Scales v. Jacobs, 3 Bing. 638, to a plea of the statute of limitations the plaintiff replied a promise within six years, and proved that three years after the original cause of action accrued, and within six years of the commencement of the action, the defendant, being called on for payment of the plaintiff's demand, said, "it was not in his power to pay, but as soon as it was he would." Held, that the plaintiff must also prove the defendant's ability to pay. In Ayton v. Bolts, 4 Bing. 105, in an action on an attorney's bill to which the defendant pleaded the statute of limitations, the plaintiff proved that the defendant, having been applied to for payment within six years before the commencement of the suit, said, "he should be happy to pay the debt if he could," and added, that if the plaintiff could recover for him a debt due to him from one Gurney, the plaintiff might therewith satisfy his own debt. Held, that the plaintiff must show the defendant's ability to pay. But in the case of Thompson v. Osborne, 2 Stark. 98, it was held by LORD ELLENBOROUGH, at nisi prius (in 1817), that a promise by a defendant to pay a debt by instalments when he is able, is sufficient to take the case out of the statute of limitations, without proof of time being given, or of the ability of the party. Upon the general

raises from the acknowledgment; and if that is conditional, it follows, as a matter of course, that the debt can only be revived subject to such conditions. The debtor, after the statute has run, is master of the situation. If the creditor expects to recover any portion of the debt, he must take it upon such terms as the debtor sees fit to dictate. PARKE, B., in an English case,1 gave expression to the rule as follows: "An unconditional acknowledgment," said he, "is good to prove a promise, because you would infer from it that the party meant to pay on request. But if he annexes any qualification or condition, that is not a sufficient acknowledgment, without proof of the performance of it."

question, and to the effect that the condition must be performed in order to give vitality to the acknowledgment or promise, see Pearson v. Harper, 11 La. An. 184; Bates v. Bates, 33 Ala. 102; Shaw v. Newell, 1 R. I. 488; Farmers' Bank v. Clarke, 4 Leigh (Va.), 603; Mullett v. Shrumph, 27 Ill. 107; Mitchell v. Clay, 8 Tex. 443. In Sweet v. Franklin, 7 R. I. 355, in a suit by an administrator against a son of the deceased on a note that had been given by him to his father, but upon which the statute had run, evidence was admitted showing that he had promised to pay the note if a settlement of his father's estate should be made upon his mother without administration, in order to save expenses. The condition was not performed, and the court held that the acknowledgment was inoperative. In Luna v. Edmiston, 5 Sneed (Tenn.), 151, the defendant told the plaintiff, to whom he owed a debt barred by the statute, If you will buy C.'s land, I will pay him what I owe you, which will be enough to pay the first instalment." It was held not sufficient, unless the condition was complied with and the land purchased.

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the proposal meet with your approbation we can make arrangements accordingly.” This was held insufficient, WILLES, J., observing that it did not amount to a promise until the terms the defendant proposed were assented to. See also Cowley v. Furnell, 12 C. B. 291; Fearn v. Lewis, 6 Bing. 349. However, in Collis v. Stack, 1 H. & N. 605, an acknowledgment in the terms following was held good without any proof of assent: "I shall repeat my assurance to you of the certainty of your being repaid your generous loan. Let matters remain as they are for a short time longer and all will be right. The works I have been appointed to, but they are not yet worked with the full complement of labor; this term will decide the matter." So where a defendant, called upon by a creditor, who held two promissory notes against him more than six years overdue, for a statement of his affairs, made out an account in which the notes were inserted as a debt to which he was liable, it was held to be a sufficient acknowledgment by the debtor. Holmes v. Mackerell, 3 C. B. N. s. 789.

If the acknowledgment of the debt is 1 Hart v. Prendergast, 14 M. & W. coupled with terms or conditions of any 741.

2 In Buckmaster v. Russell, 10 C. B. N. S. 749, the defendant had written as follows: "I have received a letter from Messrs. P. & L., solicitors, requesting me to pay you an account of £40 9s. 6d. I have no wish to have anything to do with the lawyers; much less do I wish to deny a just debt. I cannot, however, get rid of the notion that my account with you was settled in 1851; but as you declare it was not settled, I am willing to pay you £10 per annum until it is liquidated. Should

sort, no recovery can be had without proof of their fulfilment, Cocks v. Weeks, 7 Hill (N. Y.), 45; The Farmers' Bank v. Clark, 4 Leigh (Va.), 603; Shaw v. Newell, 1 R. I. 488; because as the debtor may admit the debt, and yet refuse to pay it, without giving any reason for his refusal, Careth v. Paige, 22 Vt. 179, he must necessarily be entitled to assume an intermediate position, and accord a portion of that which he might withhold altogether. Thus, an offer to pay a fixed sum in satis faction of a larger one, or of an unliqui

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