McCormick v. Brown

By the Court, Rhodes, J. : The plaintiff alleges that in 1852 he recovered a judgment against the defendant in the Circuit Court for the County of La Salle, State of Illinois, for one thousand one hundred and fifty-five dollars and fifty cents; and that, in consideration thereof, the defendant, on the 4th of August, 1863, promised, in writing, to pay the whole of said judgment in gold coin. The action was commenced in June, 1866. The Court found that the defendant, on the 4th of August, 1863, in writing, acknowledged the debt to be due to the plaintiff, and at the same time and in like manner promised to pay [184]the same to .the plaintiff in gold coin. The question is, whether the evidence sustains the finding.

It is provided by section thirty-one of the Statute of Limitations, that “no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing, signed by the party to be charged thereby.”

There are two ultimate facts that may be proved in the mode prescribed—a continuing contract, and a new contract. The acknowledgment or promise made while the contract is a subsisting liability establishes a continuing contract; and when made after the bar of the statute, a new contract is created. In this case we have to deal with the latter aspect of the statute.

By the seventeenth section of the statute, an action upon a judgment can only be commenced within five years; and, by the same section, an action upon any contract, obligation, or liability founded upon an instrument in writing, other than a judgment or decree, is limited to four years. It seems now to be well established by the authorities that the statute does not operate to extinguish the debt—does not raise the presumption of payment—but it only bars the remedy, and thus becomes a statute of repose. This position is clearly sustainable upon principle, for if the debt is extinguished, there is no consideration for the new promise.

When the creditor sues, after the statute has run upon the original contract, his cause of action is not the original contract, for his action thereupon is barred, but it is the new promise. There are many authorities the other way, some holding that the new promise takes the case out of the statute, others that it removes the bar of the statute, and others still that it revives the original contract. But the better opinion is that the action is sustainable only upon the new promise, the original contract, or the moral obligation arising thereupon, binding in foro conscientice, notwithstanding the bar of the statute, being the consideration for the