76 Ga. 371 | Ga. | 1886
The question made' is, whether a debt coming within, .the limitation act of March 16th, 1869 (Acts, p. 133),
This section from Wharton should be considered in connection with that which immediately precedes it, in order to get its full force and precise application, and to appreciate fully the distinction here pointed out between such discharged contracts as will afford of themselves a sufficient consideration for the promise and such as will not. The law on this subject is well summarized in 1 Addison, on Contracts, §13, and the authorities cited in note 1 there and other notes fully sustain the view presented. See especially the well considered and ably argued case of Shepard & Co. vs. Rhodes and another, 7 Rhode Island R., 472, 474; also the exhaustive note (a) to Wennall vs. Adney, 3 Bos. & Pull., 249, where the old cases upon the subject are classified and explained in a manner which has met the approval of succeeding judges, both in this country and in England; Shepard & Co. vs. Rhodes and another, ui sup.. and the masterly judgment of Lord Denman in Eastwood vs. Kenyon, 11 Ad. & Ells, 438 (39 E. C. L. R., 142 et seq)r This note, so generally adopted, restrains and limits the sweeping and broad views attributed to Lord Mansfield in his numerous judgments upon the subject, and vindicates him in large measure from what the annotator deems erroneous conclusions, inconsiderately drawn from expressions dropped in the course of his decisions. He especially relies upon Trueman vs. Fenton, Cowper’s R., 544, 547, 549, which, we think, is a case well worthy of careful study and serious consideration, and, as explained by later decisions and text-writers, accurately sets forlh the law upon this interesting and highly important question. We do not understand that the provisions of our law (Code, §§1950, par. 6, 2542, 2934), requiring a promise to waive a debt barred by the statute of limitations to be in writing, are ¿ither inapplicable or repugnant to anything contained in the act of limitations of the 16th of March, 1869, nor do we think that act interferes with, or in any manner