Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-10-26
UNITED STATES.
LAW INTELLIGENCE.

/ ROW Circuit Court Of renns, iv4na, October 1891.
Washington, j. delivered the opinion of the
Court.
/ This case comes before the Court upon two
rules to show cause =: LIST, Why the Judgment
should not be arrested; and, ed, Why new
trial should not be granted.
i. In support of the first rule, certain ex
captions were taken to the Cd, Sd, 18th, and 9Th
additional count IN the declaration. We shall
/ direct our attention principally 10 the 18th
count, because this was the count the coun-
sci seemed TO consider most faulty. 1t states
" that the defendant being, on the lst of No
vember 1909, at Philadelpla indebted to the
plaintiff, on certain bill OF exchange, of which
the defendant was the drawer, in the sum of
600 dollars; he then and there averred TO the
plaintiff that he was then not able to pay the
SAID bill, hut promised the plaintiff that if he
would grant the defendant indulgence in time,
he, the defendant, would pay to the plaintiff
The amount of said bill, whenever he, the de-
PENDANT, should be able To- paw the same and
the plaintiff ayers, that he did grant reasun-
able indulgence in time To the defendant and
further, that at the time this action was brought,
the defendant was able, and had the means
to pay the said bill, but that he had ne, erthe-
| less refused TO pay the saine," &c. sc.
The objections made TO the count are, l..
That the consideration being past, il affords
no ground TO support an ass,tmps,t to pay an
existing debt. 9. The contract as set forth
was all on one side the count not stating
that the additional promise was accepted bv
the plaintiff. 8. That although the promise
might have'bcen given in evidence to estab-
l!sh tbs original debt, if the action had been
to recover the same, it is not of itself ground
OF action, because ii il be, then there would be
two independent subsising contracts, upon
either of which the plaintiff might bring his
| action. 4. That iOrbearance is not Il sufficient
consideration to raise GssumpSa unless il
he specific and reasonable in point of time,
which this is alleged not To be-
In support of the first objection, the counsel
| cited no authorities, and we take the rule to
he, that promise 10 pay sum of money
on a consideration executed, II il was induced
| by the request of defendant, or bv some pre-
vIous duty, or if the debt he continuing at the
time, or is barred by a rule OF law, or nrovi-
son of some statute, as the Act Of Limitations,
Bankruptcy, and theIkc, is good to maintain an
GssumPSi!. This is laid down by Pore! in his
Essay on Contracts, +. $50, SOL who cites
Hodge V. Pdrasor, 1 Rolls Rep. 4I5-.Jcha-
SON V. .isieu. Leoa 1913. Il. Rayp1 $50. See
also s Salk. e6.
Butitis unnecessary to examine this position
! further, because in Ibis case the promise was
to pay if the plaintiff would give time to
the defendant" which was new considcra-
ton, and clearly sufficient TO uphold the pso-
mise, beng benefit 10 the defendant and an
injury TO the plaintiff. The cases upon the
point are both numerous and uniform, few
of which only il will be necessary TO refer to-
| B,dioeH V. Golfer, Hob. clio. Gro. EliZ tx
| 10, $40, 331, 665. Gro. JAG Gas Names "
Sidney. Ifoi. ID. 81. ]d. 40. 81.
| he 2drblccton is opposed By all the cases
| and precedcnts which refer to this subject.
| IN all the cases referred to in answer To the
lrst objection, where new promise in conside-
| ration OF iorbcarance was the ground of the
action, the declarations state the PROMISE the
considerations and the forbearance, withoutany
averment that the plaintiff had agreed on his
part TO forbear. Such, too, are the pre-
cedents See Chiity, Plead. 30, 8, a. The
case of .Hapes v. Sidney, Gro. JAG 68S, was
an assgmpsit on promise to pay in con
SHERATON OF forbearance, with an avermcnt
that the plaintiff did forbear for such time ;
and this was decided TO be sufficient and that
u the defendant had paid the debt, and the
4 plaintiff had afterwards sued on the original
cause of action, the defendant might have
maintained an action on the case against him
AS to the Sd objection, it may be conceded
that an action may he maintained on the orr
gIhal cai'se and the new promise given in evil
" "'N'u OpcIdiiOD DI tie act Oh Ellli-
tations, or to obviate AN objection grounded ON
the omission to give duo notice of the disho-
nor Of bill of exchange. This was the case
OF 1hompSoa V. Osborne, Stark. Rep. 90
ana there are many cases of the same kind
which might be quoted. But it is not less
true, from the cases referred to under tie first
head OF objections, that the action may be sup
ported upon the ne,o promise and .Sel,cyn, D.
%, who states that the plaintiff is not obliged!
to declare on the new promise, but ntGg do so
on the old, and give the new in evidence, says
that some pIcadcrs OF 0nIncncc declare on
both promises"
Whether upon declaration on the old pro-
mise, the plaintiff can give in evidence ,,e,c
conditional promise varying from the old one,
may admit Of some doubt. In the case oi
Smith V. Ddris, ! Esp. n. p. Ga. and Bedford
V. sanders. Hen. Black. li6, this was per
United. In Il former action between these
parties, upon this Bill! of Exchanse, this Court
was OF opinion that a conditional promise
could not he given in evidence IN answer to
the Act of Limitations, bccau 80 it did not cor
respond with the promise laid in the deciara-
ton, and If put into the form Of plea, il
would have been departure from the decla-
ration. This opinion is strongly supported by
the case OF Htckmasi's Er. v. Waiter. NVilles'
Rep. %. which was action by an executor on
Il promise TO the tcstatOr and upon plea
: of the Act Of Limitations, it was decided to
be departure to reply new promise to the
executor. See also Dean y. Crane, Saik. 90.
Lord Raym. llOl. 8 East Rep 400 .
Hen. and Munf 4Oi. QHorts' $ .2d,a. :. Lilne-
lpdge.
In some Of the above cases it is said, that
the plaintiff should have declared in the ae,s
promise to himself and in . Stra. nike 81
JiarlbcroughS Erecntors v. W33more, the plain