| U.S. Circuit Court for the District of Eastern Pennsylvania | Apr 15, 1818
(charging jury). This is a plain case, upon the plea of the act of limitations. It is admitted, that an absolute promise to pay, made in 1809, would not take this case out of the operation of the act, unless the suit had been brought within six years after the promise was made, which this was not. But it is contended that the promise was conditional, in two respects, —first, to pay when the defendant should be able; and secondly, at any time within ten years; and consequently, that the limitation did. not begin to run till he was able, nor till the expiration of the ten years. As to the first, -whether a promise to pay when the defendant shall be able, be absolute or conditional, need not be decided in this case; because, if it be conditional, still this action, which is upon the original promise, cannot be supported. Where a subsequent promise, or acknowledgment of a debt, is made, it may be given in evidence, to remove the bar of the act of limitations, though the action be brought upon the original cause of action. But, if the new promise vary the terms of the original contract on which the action is brought; as if the former be conditional, and the latter absolute; the former cannot be given in evidence, because the proof would not correspond with the allegation. The defendant could not be prepared to meet evidence, of which the declaration gave him no notice; and if the plaintiff were to state the conditional promise, in a replication, it would be a departure from the declaration. It was for these reasons, that the court refused to permit the plaintiff to give evidence of the ability of the defendant to pay this debt. As to the promise to pay, if it were ten years, it is subject to the same objection; and also to another. If the defendant was bound, by this promise, to pay at any time within the ten years, as the plaintiff contends he was, then the act of limitations began to run from the time the new promise was made, and of course this action was brought too late. If he was not bound to pay before the expiration of the ten years, then it is brought too soon. So that, take it either way, the plaintiff cannot recover. If the true construction of the promise be, to pay, if the defendant should be able at any time within ten years; still it would be liable to the objection before stated, that of its being conditional.
Verdict for defendant.