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

In Ohio, it has been held that neither an acknowledgment, new promise, nor part payment after the debt is barred will revive it.? 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.

Sunday that a sum of money by him pre. 2 Hill v. Henry, 17 Ohio, 9.

viously paid to the plaintiff was to be 3 Farley v. Kusten bader, 3 Penn. St. applied upon the note in suit was aula 418; Case v. Cushman, 1 id. 241; Morgan missible. “The acknowledgment,” said v. Walton, 4 id. 321.

Park, J., "did not apply the money to 4 Hazlebacker v. Reeves, 9 Penn. St. the note ; it merely furnished evidence 258; Forney v. Benedict, 5 id. 225; Pat. that it had been applied. Neither did the ton v. Hassinger, 69 id. 311 ; Wetham's admission itself tend to remove the bar of Estate, 6 Phila. (Penn.) 161.

the statute. The bar had, in fact, been re5 Haydock v. Tracy, 3 W. & S. (Penn.) moved by the partial payment of the note, 507; Clapp v. Hale, 112 Mass. 368. But and the offer was simply to prove it by in Maryland, an acknowledgment made on the partial payment of the note, and the Sunday is sufficient, Thomas v. Hunter, effect, we think, was simply to prove it by 29 Md. 406; and in Connecticut, in Beard the acknowledgment. We think the mera ley v. Hall, 36 Conn. 275, while the gen- telling of the truth upon the Sabbath day eral doctrine that an acknowledgment of a in relation to a matter like this is not debt made on Sunday would be inopera- transacting secular business within the tive was not denied, yet it was held that meaning of the statute." evidence that the defendant admitted upon

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CHAPTER VIII.

ACKNOWLEDGMENTS IN WRITING.

SEC. 82. Lord Tenterden's Act.

83. Similar Statutes in this country. 84. Effect of Statutes requiring a

Writing 85. Sufficiency of. Instances. 86. Acknowledgment must clearly

refer to the Particular Debt. 87. Distinction between Absolute and

Qualified Promises, &c. Il

lustrations. 88. Promise, &c., must be definite.

Amount need not be stated.

Sec. 89. Instances of Sufficient Acknowl.

edgments.
90. Direction in & Will, to pay

Debts.
91. Debts due from Corporations.
92. Entry of Debt in Schedule, Deed,

&c.
93. Sufficiency of, for the Court,

except.
94. Must be signed by the Debtor.
95. Promise must bind the Debtor

personally. Conditicns, Effect
of.

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 TINDAL, C. J., in Haydon v. Wil. was and is simply to prevent fraud and liams, 7 Bing. 163, said : "To inquire perjury in proving the acknowledgment or whether, in a given case, the written docu- promise, by requiring proof thereof, about ment amounts to a written promise or ac- which there can be no question, Dickinknowledgment is no other inquiry than son v. Hatfield, 5 C. & P. 46, and to do whether the same words, if proved, before away with the absurdity which had surthe statute, to have been spoken by the rounded other cases arising upon loose, defendant would have had a similar opera- indefinite, and unguarded verbal admistion and effect." The object of the statute sions. SILAW, 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 adıninistrator 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.

64. 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 the progressive step taken by the British of THOMPSON, J., in Moore v. Bank of Co. Parliament in the enactment of this statute, lumbia, in which he speaks in high praise and the good results likely to ensue from it.

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The main portion of this statute is given here for convenience sake, and because in those States of this country in which written acknowl. edgments 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, Kentacky, 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.

simply renders a writing necessary as a means of proof, and does not effect any alteration in the legal construction to be put upon such acknowledgments or promises. In the language of TINDAL, C. J.,' they “merely require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable for the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, whether in a given case the written document amounts to an acknowledgment or promise, is no other inquiry than whether the same words, if proved, before the statute was enacted, to have been spoken by the defendant, would have had a similar operation and effect.” It appears also that the words “promise” or “acknowledgment” in the statute mean the same thing. The terms of a lost acknowledgment in writing may be proved and the acknowledg. ment supported by parol evidence.*

Sec. 85. Sufficiency of. Instances. — Under these statutes any writing, signed by a defendant, admitting that a debt is due and unpaid, whether under a bond, deed, or simple contract, will revive the remedy upon the contract or obligation, although there is not upon its face any express promise to pay it;5 but there must be upon the face of the writing enough to warrant the implication of a promise to pay, as if the words used are simply “IO U £275," that is sufficient, because from the absolute acknowledgment of a debt, unaccompanied by any qualifying observations, a promise to pay on request may be inferred.? If, however, there is anything on the

1 Haydon v. Williams, 7 Bing. 16. & M. (Miss.) 663 ; Davidson v. Harrison,

2 POLLOCK, C. B., Godwin v. Culley, 4 33 Miss. 41. And in no case can a part H. & N. 373. See Moore v. Columbia Bank, payment that is enforced by law be treated 6 Pet. (U. S.) 86, and remarks of Shaw, as sufficient to remove the statute bar. C. J., in Sigourney v. Drury, 14 Pick. Davies v. Edwards, 15 Jur. 1044. But in (Mass. ) 389; Dickinson v. Hatfield, 5C.&P. Fiske v. Hibbard, 45 N. Y. Superior (t. 46. Where the statute requires that an 331, a letter from a debtor to a creditor as acknowledgment or new proinise shall be follows : “I am aware that 'I owe you, for in writing, a verbal acknowledgment of money borrowed. As you have the figures, the correctness of an account, although it I wish you would, at your leisure, make may have the effect of making it an account out a statement of what you consider my stated, will not be sufficient to suspend indebtedness to you, and send it to me, or repeal the statute. Floyd v. Pearce, resting assured that in all money matters 57 Miss. 140. And in Mississippi even a I want to act honestly towards every. written promise to pay part of a debt, with body," was held sufficient as an acknowlout any promise to pay the balance, as “I edgment of whatever indebtedness actually am going to Aberdeen to-morrow and will existed at the time it was made. send fifty dollars, which is all I can spare 8 Haydon v. Williams, ante. at present," is held not a sufficient acknowl- 4 POLLOCK, C. B., in Godwin v. Cul. edgment of the debt to take it out of the ley, ante. statute. Eckford v. Evans, 56 Miss. 18. 6 Linley v. Bonsor, 2 Bing. N. C. And in that State it is also held that from 241. the mere fact of part payment the jury are 6 Evans v. Simon, 9 Exch. 285. not authorized to infer a promise to pay 7 Smith v. Thorne, ante; Dobbs 6. the rest. Smith r. Westmoreland, 12 S. Humphrey, 10 Bing. 449.

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