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promise becomes an absolute one upon the old debt.1 If the condition is one which does not depend upon the act of either party, as if there is "a promise to pay when able," the plaintiff under his replication is simply put to his proof that the defendant was, at the time of action brought, of sufficient ability. But if the condition is one which is dependent upon the action of the defendant, as if he promises to pay a

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their giving an opinion that the plaintiff could not have recovered, in case he should have shown that the defendant was liable to pay. The court says: "The promise here is guarded with a condition; . . . and it is sufficient to say there is no proof of the defendant's ability so as to satisfy the condition, and make the conditional promise an absolute one.' The courts, therefore, do not mean to intimate that, the condition being performed, so as to make the promise an absolute one, the plaintiff could not have declared in the ordinary way. There are cases in which this point has occurred, in which the plaintiff has been permitted to recover upon a declaration in the ordinary form, without stating any conditional promise. One of these cases is Thompson v. Osborne, 2 Stark. N. P. C. 98, id. 3, and another is Davies v. Smith, 4 Esp. 36, where LORD KENYON intimates that, in order to proceed upon such a promise, the plaintiff must prove that the defendant was of ability, and may then recover upon a declaration stating an absolute promise to pay. On these grounds it seems to me that the plaintiffs are entitled to recover. I think there was a binding engagement between the parties, and a promise on the part of the defendant for a new consideration in the event of the instalments not being paid. That promise became absolate in the month of September, 1830; that is, within the six years that would sustain the promise in the declaration, and that we must take as being a promise to pay according to the tenor and effect of the notes."

ALDERSON, B., also said: "I am entirely of the same opinion. It seems to me that there was a contract for a new consideration in 1827, which was not fulfilled in the year 1830, when the instalments ceased to be paid; then there was nothing more remaining of the contract but the simple duty of paying the promis

sory notes. On the part of Mr. Veitch, all we know is, that there has been an agree ment, and he had nothing more to do than to perform his part of it, which was to pay the promissory notes then in existence; and it is not only a contract within the six years, but a contract within the six years properly stated upon the record. Then the statute of limitations is no answer to a breach of the contract so properly stated upon the record. Upon these grounds I concur entirely in the judgment of the court."

GURNEY, B., in concurrence, said: "In 1827, the defendant, who was residing abroad, being indebted to the plaintiffs, in order to gain time, engages to do certain things. In the first place, he engages to set apart a portion of his consular salary; in the next place, he apportions the proceeds of certain wines then in India; and, in the third place, Mr. Cock is to give his acceptance for £245. The plaintiffs were willing, on these conditions, to abstain from exercising their right of suing; but they stipulate that in case of his failing in these conditions they shall be remitted to their original right. That failure did take place three years after, in the September of 1830, by the non-payment of the third instalment of £300, and then the plaintiffs were put in the same situation as they were on the 1st of October, 1827. It follows upon this that the action is brought in due time."

In this case, it will be observed that the new promise was made before the statute had run; but the court, in treating the question, plainly intimate that there is no real distinction in this respect, except that the party may or may not, at his election, declare upon the new promise.

1 Stone v. Rogers, 2 M. & W. 443; Thompson v. Osborne, 2 Starkie, 98; Davies v. Smith, 4 Esp. 36.

2 LORD KENYON, in Davies v. Smith,

ante.

certain sum each year, for a certain number of years, it is only incumbent upon the plaintiff to show that the instalments were not paid, as agreed.1

In Ohio, it has been held that neither an acknowledgment, new promise, nor part payment after the debt is barred will revive it.2 Whether this ruling was justified by the language of the statute may be doubted, but the doctrine is supported by the dicta of several cases in other States; but the rule itself seems to have no foundation in principle, and is contrary to the actual doctrine of all the authorities outside of that State, from the time when these statutes were first adopted down to the present time. Indeed, it has been doubted whether an acknowledgment made before the statute has run upon a debt is supported by a sufficient consideration to render it operative to suspend the running of the statute. But this doubt was only shortlived, and it is well settled, as previously stated, that a promise to pay, made either before or after the debt is barred, will suspend or remove the statute bar. The new promise or acknowledgment must be shown to have been made upon a week-day, as in all those States where the statute renders contracts made upon the Sabbath void, such an acknowledgment or promise made upon Sunday would be wholly inoperative."

1 Irving v. Veitch, ante.

2 Hill v. Henry, 17 Ohio, 9.

Farley v. Kustenbader, 3 Penn. St. 418; Case v. Cushman, 1 id. 241; Morgan v. Walton, 4 id. 321.

4 Hazlebacker v. Reeves, 9 Penn. St. 258; Forney v. Benedict, 5 id. 225; Patton v. Hassinger, 69 id. 311; Wetham's Estate, 6 Phila. (Penn.) 161.

5 Haydock v. Tracy, 3 W. & S. (Penn.) 507; Clapp v. Hale, 112 Mass. 368. But in Maryland, an acknowledgment made on Sunday is sufficient, Thomas v. Hunter, 29 Md. 406; and in Connecticut, in Beardley v. Hall, 36 Conn. 275, while the general doctrine that an acknowledgment of a debt made on Sunday would be inoperative was not denied, yet it was held that evidence that the defendant admitted upon

Sunday that a sum of money by him previously paid to the plaintiff was to be applied upon the note in suit was ad missible. "The acknowledgment," said PARK, J., "did not apply the money to the note; it merely furnished evidence that it had been applied. Neither did the admission itself tend to remove the bar of the statute. The bar had, in fact, been removed by the partial payment of the note, and the offer was simply to prove it by the partial payment of the note, and the effect, we think, was simply to prove it by the acknowledgment. We think the mere telling of the truth upon the Sabbath day in relation to a matter like this is not transacting secular business within the meaning of the statute."

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SEC. 82. Lord Tenterden's Act.-In England, the great laxity that existed in reference to the removal of the statute bar by parol acknowledgments, and the strong tendency on the part of the court to relieve parties from the effect of the statutes upon the slightest proof, as well as the great temptation to perjury afforded by the rules established by the courts, aroused a strong public sentiment, especially in the minds of the leading lawyers of the country, to the necessity of some change in the statute as to the methods of proof of acknowledgments; and in May, 1828, the statute of 9 Geo. IV. c. 14, commonly called LORD TENTERDEN'S ACT (he being the author of the statute), was passed, and went into effect Jan. 1, 1829. This statute makes a writing necessary to an effectual acknowledgment in cases under the statute of James and the kindred Irish act. Notwithstanding that the act contains a recital that various questions have arisen as to the proof and effect of acknowledgments, it has been decided that, practically, the act is to be construed as altering the mode of proof only, not the legal construction of acknowledgments or promises.1

1 TINDAL, C. J., in Haydon v. Williams, 7 Bing. 163, said: "To inquire whether, in a given case, the written document amounts to a written promise or acknowledgment is no other inquiry than whether the same words, if proved, before the statute, to have been spoken by the defendant would have had a similar operation and effect." The object of the statute

was and is simply to prevent fraud and perjury in proving the acknowledgment or promise, by requiring proof thereof, about which there can be no question, Dickinson v. Hatfield, 5 C. & P. 46, and to do away with the absurdity which had surrounded other cases arising upon loose, indefinite, and unguarded verbal admis sions. SHAW, C. J., in Sigourney v. Drury,

The act enacts as follows: "1. That in actions of debt or upon the case grounded upon any simple contract no acknowledgment, or promise by words only, shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the said enactments or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment shall be made or contained by or in some writing to be signed by the party chargeable thereby; and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect, or by reason only, of any written acknowledgment or promise made and signed by any other or others of them: Provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever: Provided also, that in actions to be commenced against two or more such contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts or this act as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

2. And be it further enacted, that if any defendant or defendants in any action or any simple contract shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the said trial that the action could not by reason of the said recited acts or this act, or either of them, be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party pleading the same.

"3. And be it further enacted, that no indorsement or memorandum of any payment written or made after the time appointed for this act to take effect upon any promissory note, bill of exchange, or any other writing by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of either of the said statutes.

"4. And be it further enacted, that the said recited acts or this act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise."

14 Pick. (Mass.) 399. See also remarks of THOMPSON, J., in Moore v. Bank of Columbia, in which he speaks in high praise

of the progressive step taken by the British Parliament in the enactment of this statute, and the good results likely to ensue from it.

The main portion of this statute is given here for convenience sake, and because in those States of this country in which written acknowledgments are required the provisions are substantially the same as in this statute; and while the decisions of the English courts under this statute are not controlling authorities in questions arising under our statutes, yet they are always respected by our courts, and their doctrines are generally adopted in the decision of similar questions, so that it becomes important that the provisions of this statute should be before us, that we may see how far the decisions of the English courts upon questions arising under it are applicable in questions arising under ours.

SEC. 83. Similar Statutes in this Country. — Similar statutes have been adopted in all of the States of this country. In Vermont, Massachusetts, Michigan, Oregon, Minnesota, Nevada, and California, and the other States, the provisions are substantially the same; that is, that no acknowledgment or promise shall be sufficient unless it "be made or contained by or in some writing signed by the party chargeable thereby," and also embodying the other provisions as to abatement, indorsements, and set-off. In Maine, the provision is the same, except that after the words "acknowledgment" or "promise" the words, "be an express one," &c., are inserted, thus excluding an implied promise. All these statutes require that the acknowledgment or promise shall be signed by the person chargeable, and thus put it out of the power of the debtor to act in this respect by an agent. In Arkansas, the provision is that "no verbal promise or acknowledgment shall be deemed sufficient evidence in any action founded on simple contract," but does not restrict it to a writing signed by the debtor himself; and a similar provision exists in Nebraska; and under these statutes an acknowledgment by an agent is sufficient. In all these statutes there is a provision that saves the effect of a part payment upon the statute bar. It will be observed that in those States where written evidence of an acknowledgment is required the provisions are practically the same as those in the Stat. 9 Geo. IV. c. 14. In all of them except Nevada the effect of a part payment is left the same as before the adoption of the provision as to written acknowledgments; but in that State there is no saving clause in this respect, and a part payment, unless evidenced by a writing under the hand of the party to be charged, is not admissible. In New Hampshire, Connecticut, Rhode Island, Colorado, Delaware, Florida, Kentucky, Pennsylvania, Maryland, and Tennessee, no provision exists requiring an acknowledgment or new promise to be in writing.

SEC. 84. Effect of Statutes requiring a Writing. The effect of the provision in the various statutes requiring an acknowledgment or promise to be in writing, in order to remove the bar of the statute,

1 Wilcox v. Williams, 5 Nev. 206.

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