There is great confusion in the authorities as to the manner in which the creditor should enforce his rights by action if it be assumed that such a new promise has been made as will entitle him to recover. The early cases in England seem to have been brought in indebitatus assumpsit, and the declaration, as was usual in that form of action, was based on an alleged promise to pay a debt. Whether this promise was actually given or merely implied in law would not appear from the pleading, and the trial of the case on the plea of non assumpsit involved merely a question whether such a debt existed. Proof of a new promise seems to have been regarded as proof of the continued existence of the debt, and therefore of the truth of the allegation in the declaration that the defendant "promised to pay" the same.72 It is probable, however, that the right of the plaintiff to declare expressly on the later promise would not have been doubted. Indeed, in one situation the plaintiff was compelled to adopt this course; namely, where the original creditor had died and the new promise was made to his executor or administrator. In such a case the plaintiff could not successfully allege a promise to the deceased and prove in support of the allegation the continuance of the debt by a new promise to himself. He was obliged, therefore, to declare on a promise made to himself.73 So where the creditor became bankrupt and a new promise was made to the assignee in bankruptcy.74 As such cases were exceptional and ordinarily, so far as the form of action indicated, the plaintiff sued upon the old indebtedness, it seems to have become recognized by the courts that whether the practice was defensible or not, the original debt might for the purposes of pleading be regarded as the basis of the action;75 but that the method of pleading was anomalous and that the real basis of the right was the new promise has been continuously recognized. The existing law of England was expressed by Wigram, V. C, thus: "The legal effect of an acknowledgment of a debt barred by the Statute of Limita-
67Tillett v. Commonwealth, 9 B. Mon. 438; Emmons v. Overton, 18 B. Mon. 643; Fechheimer v. Gold-namer, 169 Ky. 243, 183 S. W. 541. Cf. Rafferty v. Bank of Hardinaburg, 176 Ky. 145,195 S. W. 429.
68 Ames, Lectures Legal Hist. 94.
69 Id. 146.
70 Fisk v. Mitchell, 24 L. T. Rep.
(N. 8.) 272; Union Nat. Bank v. Lee, 33 La. Ann. 301; Mainzinger v. Mohr, 41 Mich. 685, 3 N. W. 183; Perkins v. Cheney, 114 Mich. 567, 72 N. W. 595, 68 Am. St. Rep. 495; First Nat. Bank v. Ballou, 49 N. Y. 155; Long v. Miller, 93 N. C. 233. 71 See supra, Sec. 157.
72 Dickson v. Thomson, 2 Show. 126; Heyling v. Hasting, 5 Mod. 425; s. c 1 Salk. 29, Carthew, 470. See also Irving v. Veitch, 3M.&W. 90; Langdell, Summ. Contracts, Sec. 73.
73 Dean v. Crane, 1 Salk. 28, s. c, 6 Mod. 309; Ld. Ray. 1101; Williams v. Gun, Fortesc. 177. In this case the court said that "here the action was brought on the express promise to the administrator, though grounded upon an old foundation." Sarell v. Wine, 3 East, 400; Ward v. Hunter, 6 Taunt. 210.
74Skinner v. Rebow, 2 Str. 919; Kinder v. Paris, 2 H. Bl. 661.
75In Leaper v. Tatton, 16 East, 420, Lord Ellenborough said: "As to the form of declaring insisted on, it is enough to say that it has never been in use, and that it is the common practice to declare on the original contract, and, if the statute be pleaded, the only question is, whether the defence given by it has been waived." In Upton v. Else, 12 Moore, 303, Best, C. J., said; "We have every wish to give full effect to the statute. Probably the new promise ought in strictness to be declared on specially, but the practice is inveterate the other way, and we cannot get over it." tions is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense, and for that purpose, the old debt may be said to be revived. It is revived as a consideration for a new promise. But the new promise, and not the old debt, is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it; for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." 76 These words have been quoted with approval in a number of subsequent cases.77 If, therefore, the essential rights of the parties turn upon it the English court has recognized that the new promise is in fact the cause of action.78 In view of these precedents it is not surprising to find that the majority of American courts allow an action on the original debt and this tendency is the greater because many courts are now disposed to deny validity to moral consideration and past consideration of every kind and seek to avoid the theoretical difficulties of giving effect to new promises to pay barred debts by holding that the new promise operates merely as a waiver of the defence of the statute and must be pleaded, if pleaded at all, by way of replication rather than in the declaration.79 Further, in view of tile
76 Philips p. Philips, 3 Hare, 281, 299.
77 Buukmaster v. Russell, 10 C. B. (N. S.) 746, 750; Chasemore v. Turner, L. R, 10 Q. B. 600, 605; Lusher v. Hansard, 20 Times L. R. 31; Shepherd v. Thompson, 122 U. S. 231, 239, 30 L. Ed. 1156, 7 S. Ct. 1229.
78 In Lechmere v. Fletcher, 1 Cr. & M. 623, the defendant and another who were jointly indebted to the plaintiff were sued by him, and the Statute of Limitations was set up as a defence. Prior to the action, one of the defendants had made a new promise in writing, and an action was brought on the original debt against the joint debtors. The plaintiff failed to recover, but subsequently brought this action on the new promise of the single defendant, Fletcher. It was held that the judgment in the prior joint action was no bar, that the new promise created a separate several liability on the part of Fletcher. See also Weare v. Chase, 58 N. H. 225.
79St. John v. Garrow, 4 Port. 223, 29 Am. Dec 280; Pearson v. Darring-ton, 32 Ala. 227, 258; Harlan v. Bernie, 22 Ark. 217, 76 Am. Deo. 428; Austin v. Bostwick, 9 Conn. 496, 26 Am. Dec. 42; Vinson v. Palmer, 46 Fla. 630, 34 So. 270; Kelly v. Leachman, 3 Ida. 629, 634,33 Pac. 44; Walker v. Freeman, 209 111. 17,70 N. E. 595; Willey v. State, 105
English precedents it is not surprising to find also that in some jurisdictions where the practice is to declare upon the original debt, it is nevertheless stated that the plaintiff's right is on the new promise, and that the old indebtedness serves merely as a foundation or consideration for the new promise.80 Sometimes it is said the creditor may as he prefers sue either upon the new promise or on the original indebtedness,81 and some jurisdictions hold that the plaintiff must sue on the new promise.82 A distinction, however, is often taken, in jurisdictions which do not hold an action on the old debt the uniformly correct method of pleading, between cases where the statute has and those in which it has not completely run at the time of the new promise. In the latter class of cases it is held that the action must be on the original debt.83
Ind. 453, 5 N. E. 884; Bayliss v. Street, 61 Iowa, 627, 2 N. W. 437; Guy v. Tama, 6 Gill, 82; Haley v. Jewett, 3 Mete. 439, 2 Metc. 168; Boyd v. Hurl-but, 41 Mo. 264; Betton v. Cutts, 11 N. H. 170; Barker v. Heath, 74 N. H. 270, 67 Atl. 222; Waltermire v. West-over, 14 N. Y. 16, 20; Yaw v. Kerr, 47 Pa, 333; Haalitt v. Stillwagen, 23 Pa. Super. 114, 116; Stearns v. Stearns Adm., 32 Vt. 678, 682.
80 In Taylor v. Hotchkisa, 81 N. Y. App. Div. 470, 474, 80 N. Y. S. 1042, speaking of the analogous case of a new promise to pay a debt discharged in bankruptcy, the court said: "While,as a mere rule of pleading, the courts have allowed cases of this character to proceed upon the former theory, this has seemed to be done as a matter of permission and tolerance and with full recognition of the fact that it was more logical to treat the subsequent promise as the cause of action and the original obligation reduced from a legal to a moral character as merely supplying the consideration. Depuy v. Swart, 3 Wend. 136, 20 Am. Dec. 673; Dusen-bury v. Hoyt, 53 N. Y. 621, 13 Am. Rep. 543; Scheper v. Brigga, 28 N. Y. App. Div. 116, 60 N. Y. S. 869. See also Champion v. Buckingham, 166 Mass. 76, 79, 42 N. E. 498; and cases in the preceding note, passim.
81 Lonsdale v. Brown, 4 Wash. C. C. 148, 150; Polk v. Butterfield, 9 Colo. 325, 12 Pac 216; Little v. Blunt, 9 Pick. 488, 491.
82Lambert v. Schmals, 118 Cal. 33, 36,15 Pac. 13; Weinberger v. Weidman, 134 Cal. 596, 66 Pac. 869; Pendley v. Powers, 129 Ga. 69, 58 S. E. 653; Gil-more v. Green, 14 Bush, 772; Wurth v. Paducah, 116 Ky. 403, 25 Ky. L, Rep. 586,76 S. W. 143; Howe v. Saunders, 38 Me. 350; Stoker v. Patton (Tex. Civ. App.), 35 S. W. 64; Cotulla v. Urbahn, 104 Tex. 208, 135 S. W. 1159, 34 L. R. A. (N. S.) 345; Ireland v. Mackintosh, 22 Utah, 296, 306, 61 Pac. 901.
83 Union Pacific R. Co. v. Ruef, 120 Fed. 102; Rodgers v. Byers, 127 Cal. 528, 60 Pac. 42; Weinberger v. Weidman, 134 Cal. 599, 66 Pac. 869; Richardson v. Brioker, 7 Colo. 58,1 Pac. 433, 49 Am. Rep..344; Rankin v. Anderson, 24 Ky. L. Rep. 647, 69 S. W. 705; Howe v. Saunders, 38 Me. 350; Shackelford v. Douglass, 31 Miss. 95; Taylor v. Slater, 16 R. I. 86, 12 Atl. 727.