new promise from past payment 86 or from a mere acknowledgment of liability 87 is not sufficiently clear to revive the obligation. A conditional promise is effectual according to its terms, but the condition must happen, or be waived.89 Therefore, a promise to pay a discharged debt in instalments does not afford a basis for a suit for the whole debt at once.90 88 It has been held in a few cases that some express acceptance of the condition, on the part of the creditor is necessary.91 A new promise after the beginning of bankruptcy proceedings is valid though made before the discharge is granted; 92 and * 198; Brook v. Wood, 13 Price, 667; Allen v. Ferguson, 18 Wall. 1, 21 L. Ed. 854; Dearing v. Moffitt, 6 Ala. 776; Torry v. Krauss, 149 Ala. 200, 43 So. 184; Stern v. Smith, 225 Ill. 430, 80 N. E. 307; Dressler v. Van Vlissingen, 195 III. App. 63; Shockey v. Mills, 71 Ind. 288; Bartlett v. Peck, 5 La. Ann. 669; United Society v. Winkley, 7 Gray, 460; Bigelow v. Norris, 139 Mass. 12, 29 N. E. 61, Smith v. Stanchfield, 84 Minn. 343, 87 N. W. 917; Pearsall v. Tabour, 98 Minn. 248, 108 N. W. 808; Stewart v. Reckless, 4 Zab. 427; Holt v. Akarman, 84 N. J. L. 371, 86 Atl. 408; Roosevelt v. Mark, 6 Johns. Ch. 266; Herrington v. Davitt, 220 N. Y. 162, 115 N. E. 476; Yoxtheimer v. Keyser, 11 Pa. 364, 51 Am. Dec. 555; Brown v. Collier, 8 Humph. 510; Moseley v. Coldwell, 3 Baxt. 208. Cf. Bolton v. King, 105 Pa. 78; Taylor v. Nixon, 4 Sneed, 352. 86 Tolle v. Smith, 98 Ky. 464, 33 S. W. 410; Merriam v. Bayley, 1 Cush. 77, 48 Am. Dec. 591; Institute for Savings v. Littlefield, 6 Cush. 210; Jacobs v. Carpenter, 161 Mass. 16, 36 N. E. 676; Stark v. Stinson, 23 N. H. 259; Lawrence v. Harrington, 122 N. Y. 408, 25 N. E. 406; Wheeler v. Simmons, 60 Hun, 404. Crandall v. Moston, 24 N. Y. App. D. 547, 50 N. Y. S. 145. Besford v. Saunders, 2 H. Bl. 116; Campbell v. Sewell, 1 Chitty, 609; Earle v. Oliver, 2 Exch. 71; Dearing v. Moffitt, 6 Ala. 776; Branch Bank v Boykin, 9 Ala. 320; Kraus v. Torry, 146 Ala. 548, 40 So. 956; Mason v. Hughart, 9 B. Mon. 480; Carson v. Osborn, 10 B. Mon. 155; Tolle v. Smith, 98 Ky. 464, 33 S. W. 410; Brashears v. Combs, 174 Ky. 344, 192 S. W. 482; Yates v. Hollingsworth, 5 Har. & J. 216; Baltimore &c. R. Co. v. Clark, 19 Md. 509; Randidge v. Lyman, 124 Mass. 361; Elwell v. Cumner, 136 Mass. 102; Wiggin v. Hodgdon, 63 N. H. 39; Scouton v. Eislord, 7 Johns. 36; Herrington v. Davitt, 220 N. Y. 162, 115 N. E. 476; Kingston v. Wharton, 2 S. & R. 208; 7 Am. Dec. 638; Taylor v. Nixon, 4 Sneed, 352; Sherman v. Hobart, 26 Vt. 60. 89 Tompkins v. Hazen, 30 N. Y. App. Div. 359, 51 N. Y. S. 1003. 90 International Harvester Co. v. Lyman, 90 Minn. 275, 96 N. W. 87. 91 Craig v. Brown, 3 Wash. C. C. 503; Samuel v. Cravens, 10 Ark. 380; Brashears v. Combs, 174 Ky. 344, 192 S. W. 482; Smith v. Stanchfield, 84 Minn. 343, 87 N. W. 917; International Harvester Co. v. Lyman, 90 Minn. 275, 96 N. W. 87. See discussion as to the necessity of acceptance where a conditional promise to pay a debt barred by the Statute of Limitations is made by the debtor, infra, § 180. 92 Roberts v. Morgan, 2 Esp. 736; Brix v. Braham, 1 Bing. 281; Earle v. Oliver, 2 Exch. 71; Kirkpatrick v. Tattersall, 13 M. & W. 766; Zavelo v. ४५ so it has been held in Pennsylvania, even though made before bankruptcy proceedings have been begun; 93 but the latter cases probably would not be followed elsewhere.94 § 159. Promise to pay debt voluntarily released. If a creditor voluntarily releases his debtor, it is nearly if not quite universally agreed that a new promise by the debtor is not binding without new consideration. Even courts which are disposed to accept the doctrine of moral consideration would hold that no moral obligation lay upon the debtor thus voluntarily released, and courts which assert as a principle that a new promise is only effectual to revive a previously existing debt barred by some rule of law would hold that the bar created by a voluntary release is not within the scope of the rule. Accordingly if creditors enter into a common-law composition with their debtor,95 or otherwise voluntarily discharge any debt by release 96 or accord and satisfac Reeves, 227 U. S. 625, 57 L. Ed. 676, 93 Kingston v. Wharton, 2 S. & R. 94 Thornton v. Nichols, 119 Ga. 50, 45 S E. 785; Reed v. Frederick, 8 Gray, 230; Lowell on Bankruptcy, § 249. In Cheney v. Barge, 26 Ill. App. 182, a new promise mailed before the beginning of proceedings but received after adjudication was held enforceable. 95 Ex parte Hall, 1 Deac. 171; Samuel v. Fairgrieve, 21 Ont. App. 418; Rasmussen v. State Bank, 11 Col. 301, 18 Pac. 28; Grant v. Porter, 63 N. H. 229; Lewis v. Simons, 1 Handy, 82; Callahan v. Ackley, 9 Phila. 99; Taylor v. Skiles, 113 Tenn. 288, 81 S. W. 1258. Compare decisions as to compositions under bankruptcy proceedings, supra, § 158, n. 82 ad fin. 96 Warren v. Whitney, 24 Me. 561, 41 Am. Dec. 406; Phelps v. Dennett, 57 Me. 491; Ingersoll v. Martin, 58 Md. 67, 42 Am. Rep. 322; Hall v. Rice, 124 Mass. 292; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405; Zobisch v. Von Minden, 47 Hun, 213 (see S. C. 120 N. Y. 406, 24 N. E. 795); Snevily v. Read, 9 Watts, 396; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573. But see contra Jamison v. Ludlow, 3 La. Ann. 492; Willing v. Peters, 12 S. & R. 177. tion 97 a subsequent promise by the debtor to pay all or any portion of the debt which was not paid in the previous settlement cannot be enforced. § 160. Promise to pay debt barred by statute of limitations— early law. It became settled not a great while after the allowance of the action of assumpsit to enforce a promise to pay an antecedent debt, that a new promise by the debtor to pay his debt whether then barred by the Statute of Limitations or not, bound the promisor for a new period of six years.98 There can be little doubt that the general doctrine that a precedent debt was sufficient consideration for a subsequent promise 99 furnished the basis for the present doctrine allowing the enforcement of promises to pay debts barred by the statute though such promises are supported by no new consideration. When it became the law that the mere existence of a debt gave the creditor, under the fiction of a promise implied by law, a right to treat the debtor as if he had made a promise to pay the debt,1 it was natural that an acknowledgment of indebtedness as distinguished from a promise should be held to justify the implication of such a promise as would extend the bar of the statute, especially as the circumstances frequently warranted the inference of a promise implied in fact; and on this new promise, whether implied in fact or simply imposed by the law the debtor became liable afresh.2 "Evans v. Bell, 15 Lea, 569. In Dickson v. Thomson, 2 Show. 126, the court held "promise of payment within six years, though the debt were contracted long before, will evade the Statute of Limitations, but confession or only acknowledgment that he owed the plaintiff so much will not do it." Other early cases recognizing the same doctrine are-Bland v. Haselrig, 2 Vent. 151; Heyling v. Hastings, 5 Mod. 425, s. c. 1 Salk. 29, Carth, 470; Dean v. Crane, 1 Salk. 28, s. c. 6 Mod. 309, sub nom. Green v. Crane, Ld. Ray. 1101; Williams v. Gun, Fortescue, 177. 99 See supra, § 143. 2 Hyleing v. Hastings, 1 Ld. Ray. 421; Williams v. Gun, Fortescue, 177, 181, quoting from a decision of Lord Holt a few years previously,-"Though he that acknowledges a debt doth not thereby promise payment, yet it is evidence to the jury of a promise, which creates a new debt though upon an old foundation." § 161. Any admission was at one time held sufficient. Subsequently, under the lead of Lord Mansfield, this doctrine was carried so far that an admission of indebtedness was held necessarily to give rise to a new obligation even though the admission was accompanied by an expression of a determination not to pay the debt. But this doctrine was later overruled, and an admission treated as merely evidence of a new promise, but not conclusive evidence. The matter was finally settled in a case involving an admission in these words: “I know that I owe the money, but the bill I gave is on a three penny stamp and I will never pay it." The court held this insufficient; and it has ever since been recognized in England, and generally in the United States, that the effect of an admission or acknowledgment is merely that of evidence of a promise implied in fact. And if, taking all the circumstances into account the admission does not indicate an intention to pay, no liability arises from it.5, 6 4 § 162. Modern rule as to revival of indebtedness. In a recent English case Lord Justice Mellish said in words ⚫ often quoted: "There must be one of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied; or, secondly, 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 condition has been performed." If the word "acknowledgment" in this quotation is understood to include part payment as well as verbal acknowledgment, the statement is undoubtedly accurate in almost every jurisdiction, though as will be seen from the following sections, the application of the rule is not everywhere the same. 3 See Trueman v. Fenton, Cowp. 544; Quantock v. England, 5 Burr. 2628; Bryan Horseman, 4 East, 599; Frost v. Bengough, 1 Bing. 266; Clark v. Hougham, 2 B. & C. 149; Leaper v. Tatton, 16 East, 420; Dowthwaite v. Tibbut, 5 M. & S. 75; Mountstephen v. Brooke, 3 B. & Ald. 141; Scales v. Ja cob, 3 Bing. 638; Partington v. Butcher, 6 Esp. 66. 4 A'Court v. Cross, 3 Bing. 329. 5, 6 Cosio v. Guerra, 67 Fla. 331, 65 So. 5. 7 Mitchell's Claim, L. R. 6 Ch. 822, 828, quoted, e. g., in Custy v. Donlan, 159 Mass. 245, 247, 34 N. E. 360, 38 Am. St. Rep. 419. § 163. A new promise or acknowledgment is sufficient whether made before or after the statute has already run. A new promise made either before or after the statute has completely run extends the period of limitation for the statutory period. The same rule prevails almost universally in regard to acknowledgments. Though here distinctions have been suggested: It has with some reason been urged that an acknowledgment before the statute had run when there was no defence possible and the debtor's liability was undeniable, should not justify the inference of a new promise or have any effect other than its obvious one of an admission that at the time of speaking, the debtor owed what he admitted. Curiously enough a distinction precisely the opposite is actually taken in a few States; namely, that after a debt is once barred, an acknowledgment is insufficient to revive the debtor's liability. A new promise is then necessary, 10 though before the period of limitation had expired an acknowledgment would be sufficient to start time running afresh. § 164. Necessity of a writing. Until 1829 no formal requisite for a new promise or acknowledgment of indebtedness was made by the law of England. In that year, however, Lord Tenterden's Act, so called, was passed, which required new promises and acknowledgments to be in writing as a condition of their validity. By a proviso the effect of part payment was left unchanged. In the United States a simliar statute has been enacted in most, but by no means in all States. 12 The exact language of the Act has, 8 See cases in the following sections, passim. 'This theory was suggested but not adopted in Wald v. Arnold, 168 Mass. 134, 46 N. E. 419. 10 In re McGuire, 132 Fed. 394 (reversed on another point in Dacovich v. Schley, 134 Fed. 72, 67 C. C. A. 198); Chapman v. Barnes, 93 Ala. 433, 9 So. 589; Pollak v. Billing, 131 Ala. 519, 32 So. 639; Slaughter's Succession, 108 La. 492, 32 So. 379; Weil v. Jacobs' Est., 111 La. 358, 35 So. 599; George 11 9 George IV, c. 14, § 1. 12 There seems to be no such statute in Colorado, Connecticut, Kentucky, Maryland, New Hampshire, |