It is frequently said that a new promise can revive a right of action in assumpsit, without distinguishing between indebitatus assumpsit on the one hand and special assumpsit to recover damages on the other;98 but the analogy on which the right to enforce a new promise to pay a barred debt must be rested 99 would seem to require the existence of a previous debt as distinguished from a liability in damages for breach of a promise to do something other than make payment of money; and this view finds support in the decisions.1 The common-law recognized debts for chattels 2 and there seems, therefore, no reason why such debts should not be revived in the same way as debts for money.3 Though it is only debts which can be revived by new promises, the debt need not be liquidated.4 A new promise to pay such a debt, whatever its amount may be found to be, is generally held sufficient if the obligation of which the promisor speaks is clearly identified.5 But in a few jurisdictions, however indefensible the distinction may be, it is said that the amount of the indebtedness must be denned by the new promise either in terms or by reference to some paper which either states the amount or furnishes data for its computation; so that it shall not be necessary to have the amount due determined by a jury.6 Whether all the jurisdictions which state this as a requirement would literally and uniformly enforce it where the indebtedness though not fixed in amount was clearly identified and the promise to pay was positive may be doubted.
97 Naugler v. Jenkins, 32 Nova Scotia, 333.
98This was stated in Tanner v. Smart, 6 B. A C. 603, BOS; A'Court v. Cross, 3 Bing. 329, 331; Goodwyn v. Goodwyn, 16 Ga. 114; Rice v. Wilder, 4 N. H. 336; Exeter Bank v. Sullivan, 6 N. H. 124.
99See supra, Sec.160.
1 Doydell v. Dmmmond, 2 Camp. * 157; Whitehead v. Howard, 2 B. 4 B. 372; Wetsell v. Bussard, 11 Wheat. 309; Oament v. Martin, 23 Vict. L. Rep. 359. But in Stroud v. Commission era, 157 111. App. 427, a new promise to fulfil an obligation to repair a bridge was held to toll the statute, and in Wade v. Barlow, 99 Miss. 33, 54 So. 662, a covenant of warranty was held supported by a previous similar warranty, in renewal of which it was given.
2 See supra, Sec. 11.
4 Though in the action of debt it was requisite that the claim should be liquidated (see supra, Sec. 11), in substance the rights enforced under counts on quantum meruit and quantum valebat (which were permitted about the beginning of the seventeenth century) were analogous to liquidated claims in debt; and a plaintiff was also soon allowed to recover, under an indebitatus count which alleged a debt of a specific amount, any lesser sum which might be due to him even though that sum were unliquidated. The plaintiff declared that the defendant was indebted to him in a stated sum large enough to include any possible recovery, "and being indebted, promised to pay the sum." He was then allowed to recover whatever unliquidated amount to which he could prove himself entitled. 2 Wm. Saunders, 122 a, notes (2), (3).