Read v. Wilkinson , 2 Wash. C. C. 514 ( 1811 )

WASHINGTON, Circuit Justice

(charging jury). As to the objection to the want of protest of the six hundred and twenty pounds bill, the plaintiff is right in his law. The want of funds in the hands of the drawee, the drawer’s payment of part of it, nnd his subsequent acknowledgment of the debt, and promise to send funds to take it up, are either of them sufficient to dispense with notice and protest.

Secondly; as to Moyland’s bill, the defendant is right. It was conditional, and it is incumbent on the plaintiff to show the condition performed.

Thirdly; as to the act of limitations. A promise to pay. within the time prescribed by the act of limitations, has always been held sufficient to remove the bar. and revive the remedy, which is alone defeated by the act of limitations. Although it was once doubted whether a bare acknowledgment of the debt was sufficient to revive the remedy; it was settled long before the Revolution, and we think, rightly, that it was. I* or an acknowledgment of a debt for a valuable consideration, if not amounting to a promise, is at least evidence of it sufficient to create a debt originally; and if so, it is certainly sufficient to revive the remedy, where that has been defeated bjr the act of limitations. The decisions in England, particularly of late years, have gone great lengths in construing slight expressions into a promise or acknowledgment. We do not say that we should feel disposed to go so far. As the commercial spirit of that country has increased, the courts have shown great anxiety to remove bars against the payment of just debts, and have discountenanced, as much as possible, the act of limitations, which was once viewed with great favour. We are of opinion, that any offer on the part of the debtor, operating to remove the bar created by that act, should, upon a fair interpretation of the meaning of the party, from all that he has said, amount either to a promise, or to an acknowledgment of the debt, or of some debt. Thus, a promise to pay, if the credit- or will prove his demand, is sufficient. A promise to account, though the debtor adds that he owes nothing, may amount to a promise to pay, if it should appear upon the account that any thing is due, for why account, if the debtor does not mean to pay what may be found due? But any thing which is added, going to negative a promise or acknowledgment, must be considered as qualifying every other expression, and as the whole must be taken together, it amounts to a refusal to pay, which can never be construed into a promise to pay; as if the debtor say he owes .the debt, but will not pay it," and will take advantage of the act of limitations. See the following cases: 2 Burrows, 1000; 5 Burrows, 2030; 2 Term R. 760. Another rule is perfectly clear: If the promise is conditional, the remedy is not revived, unless the condition is performed. The creditor cannot garble what is said, and so avail himself of the promise, and reject the condition. He must take the promise on the terms offered, or not avail himself of it at all. This latter rule is conclusive of the present cause. The obvious meaning of the defendant’s letter of the 10th of April, 1805, strengthened particularly by his letter to Mr. Inger-soll, three days afterwards, and which was shown to the plaintiff, and both should be taken together, is, that the defendant consented to pay what might be found due, provided the plaintiff would execute an arbitration bond, and that Mr. Ingersoll should be the arbitrator. This offer was rejected, and of course the promise amounted to nothing. The replication, therefore, is not supported, and the verdict should be for the defendant upon the plea.

The plaintiff suffered a nonsuit.