Horatio R. Bennett v. Amherst Everett, Adm'r , 3 R.I. 152 ( 1855 )

We have carefully examined the charge given to the jury in this cause, as contained in the minutes of the late Judge Haile. The defendant has not the slightest reason to complain, that the law was not therein stated as favorably to him as any approved authorities would permit. We certainly are not inclined to go any further in the defendant's favor than he did. To renew a debt barred by a certificate of bankruptcy, there must be an express promise to pay it; express, as contradistinguished from the promise which under certain circumstances the law will imply from certain facts. This promise need not be to the holder of the debt, but it must refer to the debt, without question. No particular form of words need be used to constitute this promise. Any words, or perhaps signs or acts, which signify a present willingness to pay the debt, and which are intended to convey that idea to the hearer, are sufficient. The natural import of the words used must be a contract to discharge by payment the moral obligation that remains out of the debt discharged by the certificate. A bare acknowledgment of the justness of the debt, of its present existence as a debt formerly contracted and now unpaid, is not sufficient. Such statements as these will remove the bar of the statute of limitations, for from these, the law will imply a promise to pay. Not so, as relates to the bar of the bankrupt's certificate. The bankrupt must make the promise, and not leave it to the law to imply it. In this sense, the promise must be express. It must also be unqualified and unconditional, or else the party seeking to avail himself of it must show the condition performed. Here it corresponds with the kind of promise necessary to remove the bar of the statute of limitations.

Such we understand to be the meaning and language of the charge to the jury in this case. Whether such a promise was made, the judge in the charge very properly left it to the jury to determine. The jury were left to inquire whether the language used by Joslin and the surrounding circumstances imported or intended an express and unequivocal promise, in the sense of the terms as before explained. This we think was their appropriate duty and office. They were furthermore to be satisfied from the evidence "that Joslin intended to make himself liable to pay, and that plaintiff so understood it," unequivocally and without any condition. This conclusion they should draw from the legal evidence in the cause. The motion must therefore be overruled, and the plaintiff have judgment on the verdict.