
    Samuel vs. Cravens.
    In 1841, S. was indebted to C. for money paid, &c.: in 1842, S. became a bankrupt, and was discharged from his debts, as such, by decree of the proper Court: on the 27th March, 1S45, C. presented the claim to S., and demanded payment: S. acknowledged the justness of the debt, and promised to pay it when he should be able to do so, but refused to pay presently in money or property, or to give his note, saying he had nothing to pay with then, and could not give his note in justice to other creditors whose claims were recent; on his refusal to arrange the claim presently, C. left him, under excitement, and immediately sued him: Help, That, under such circumstances, the immediate institution of the suit by C. was not conclusive evidence that he accepted the offer of S. to pay when he should become able. Help, further, that the promise of S. to pay the debt when he should become able to do so, was not an agreement to pay instantly if C. could establish his ability to pay, but had reference to an ability to arise at some reasonable future period.
    The rule in Reardon vs. Farrington, (2 Eng. 366,) in reference to notice to take depositions, approved.
    An exception to the decision of the Court in admitting incompetent evidence is waived by a subsequent motion for new trial, unless made ground of the motion, and reserved by bill of exceptions to the opinion of the Court in overruling the motion.
    Plaintiff in error died after submission, but before judgment — judgment entered, nunc pro tunc as of a time prior to the death.
    
      Writ of Error to Pulaski Circuit Court.
    
    Assumpsit, determined in the Pulaski Circuit Court, in November, 1846, before the Hon. William H. Feild, Judge.
    The action was brought, 28th March, 1845, by Robert Cravens, against Henry F. Samuel. The declaration, as originally filed, contained two counts : 1st. That, on the first day of January, 1841, defendant was indebted to plaintiff' in the sum of $1,000 for so much money by the plaintiff paid, laid out, and expended to, and for the use of defendant, &c.; and, being so indebted, promised to pay, &c>
    2d. On a count stated : That, on the 27th March, 1845, plaintiff and defendant accounted, &c., defendant was found in arrer and indebted to plaintiff in the further sum of $1,000, which he promised to pay on request, &c.
    Defendant pleaded, 1st. Non assumpsit:
    2d. The statute of limitations — three years:
    3d. Bankruptcy (in July, 1842) after the making of the several promises mentioned in the declaration, and before the commencement of the action. To the first plea, plaintiff took issue; to the second, he filed three replications :
    1st. That defendant did undertake, and promise within three years, &c.:
    
      2d. That the plaintiff was beyond the limits of the State at the time the several causes of action accrued, &c.
    3d. Plaintiff resided beyond the limits of the State at the time of the passage of the limitation act of 14th December, 1844.
    To the Sdiplea, plaintiff also filed three replications :
    1st. That neither of said causes of action accrued to plaintiff before defendant became a bankrupt:
    2d. A new promise after bankruptcy, and before suit brought.
    3d. Defendant did not become a bankrupt in the manner and form, &c.
    Issues were made up to these replications. The above pleadings were commenced at the return term, (April, 1845,) but not completed until the November term following. At the November term plaintiff asked and obtained leave to amend his declaration by adding" a third count. This count was, in substance, as follows :
    Plaintiff further declares, that, on the 27th March, 1845, at, &c., defendant was further indebted to plaintiff in the sum of $1,000, for so much money by plaintiff, before that time, paid, laid out, and expended to, and for the use of, the said defendant, at his special instance and request; and, being so indebted, defendant, in consideration thereof, afterwards, to wit: on the day and year last aforesaid, undertook and then and there faithfully promised said plaintiff to pay him the said sum of money, whenever he, the said defendant, afterwards could do so; and said plaintiff avers that afterwards, and before the commencement of this suit, to wit: on the day and year last aforesaid, at, &c., defendant could, might, and was able,'to pay said plaintiff the said sum of money; by means whereof defendant became liable, &c.
    By consent of parties, it was ordered that the pleas and issues made to first and second counts be taken and made to apply to the third or amended count of the declaration.
    The issues were submitted to a jury at May term, 1846, but no verdict. They were again tried at the following November term, and verdict in favor of plaintiff for $616 09 damages.
    
      Defendant moved for a new trial, on the grounds that the verdict was contrary to law and evidence, and that the Court erred in giving and refusing instructions to the jury. Motion overruled, and bill of exceptions by defendant setting out the evidence, &c.
    Plaintiff read, on the trial, the deposition of Crabtree, in substance, as follows:
    Witness was present, in Little Rock, on the 27th March, 1845, at an interview held between plaintiff and defendant; Cravens asked Samuel for the money he was owing him; Samuel said he had not the means then, but would pay it as soon as he could; he said it was a just debt, and that he had paid something near $25 on it. Cravens showed Samuel a statement of his claim, [which is exhibited with the deposition,] which Samuel said he had no doubt was correct, and that he would write to Thomas C. Graves upon the subject, for he had left him to settle the debt. [The paper exhibited is a statement of money made of Cravens by execution in January, 1841, amounting to about $553 20, in a case in which one Lewis was plaintiff, and Cravens and others defendants.] Plaintiff resided in Christain county, Kentucky, before and after October, 1840.
    
      Cross-examined. — Witness had not above detailed all the conversation which took place between plaintiff and defendant on the 27th March, 1845, at the interview referred to. After Cravens asked Samuel for the money, Samuel said he had nothing of his own at all, but was doing business as agent for others; he also said he had given up all his property when he took the benefit of the bankrupt law. Witness did not know whether it was before or after Samuel took the benefit of the bankrupt law, that he paid Cravens the $25 above referred to. At the interview above spoken of, plaintiff did not present defendant a note to sign for the amount he claimed of him, but asked him to give his note, which defendant refused to do. Defendant gave, as a reason for not giving his note to plaintiff, that he did not think it would be doing his creditors justice. Witness asked Samuel if he would not let him (witness) have the amount of plaintiff’s claim in groceries, and that he would pay plaintiff. Samuel replied that he had not any groceries, and that he would just as soon pay the cash. Defendant said he could not do his creditors justice by giving his note, but that the debt was just, and he would pay it when he could. Witness did not recollect that plaintiff offered to give defendant time on the claim if he would bind himself to pay it. Witness asked defendant if he'would execute his note, if plaintiff would give him time, to which he replied he would not. Defennant said something of his then being in debt for goods bought on a credit, but witness did not remember what it was. Defendant said he had not the means to pay plaintiff any thing then. Defendant did not offer to pay plaintiff any thing then in money or property. Plaintiff left the house of defendant somewhat excited, witness remained and asked defendant if he would not execute his note if plaintiff would give him time, but did not urge defendant to pay the claim. Witness was present at the above interview between plaintiff and defendant at the request of plaintiff.
    The above testimony was drawn out of the witness by interrogatories, but it is deemed sufficient to state the substance of his answers.
    The Court permitted the plaintiff to read the deposition of Robert Lewis against the objection of defendant. This deposition was taken under notice, given by plaintiff to defendant, that he would take depositions “on the 27th, 28th, 30th, and 31st days of March, 1846, between the hours of 10 A.M. and 6 P.M. of each or any one of said days, at,” &c.
    Lewis deposes, that, about the 10th February, 1837, he loaned Samuel & Bledsoe $450, and took their note therefor, with Cravens and Thomas C. Graves as their securities. He afterwards compelled Cravens to pay him the debt except a small amount paid him by Graves. Had known witness Crabtree for some time, but not intimately, — so far as he knew him, he stood as fair with him as any other young man.
    The Court then permitted plaintiff to prove, by several witnesses, against the objection of defendant, that defendant had been merchandizing, in Little Rock, for more than a year before the commencement of the suit to the time of the trial, in his own name and under his own sign, during which period he had never had less than one to two thousand dollars worth of goods in his store, and that his stock apparently averaged as much as six or eight thousand dollars worth of goods, and was doing a fine business; but they knew nothing of their own knowledge as to whom such goods belonged, but, to all appearance, was doing business on his own account. One of the witnesses had heard defendant say, some eighteen months before, that he and Bled-soe had a store in Washington, Arks.
    Defendant then proved, that, in July, 1842, he was duly discharged from his debts, &c., as a bankrupt, in the United States District Court for the Northern District of Mississippi. The above is the substance of all the evidence contained in the bill of exceptions.
    After the evidence was closed, plaintiff waived his right to recover on the first and second counts in the declaration, and elected to rely on the third. The Court charged the ]ury generally as follows:
    “That since the defendant’s bankruptcy has been proved, it extinguishes any alleged indebtedness prior to that time; the first two counts of the declaration are, therefore, out of the case, and the plaintiff, if he recover, can only do so under the third count alleging the subsequent promise. The prior indebtedness, although discharged by bankruptcy, is a good consideration to support such promise, if made, and that promise may be either verbal or in writing. The jury must believe, from the evidence, that the defendant expressly acknowledged the justness of the debt, to the plaintiff, and promised to pay it when he was able, and that he was able at the time this suit was brought, in order to find for the plaintiff. The jury must also believe, from the evidence, in order to find for the plaintiff, that he accepted the defendant’s promise to pay when he was able. In order to make this promise binding on the defendant, all the plaintiff had to do was to accept it, and his bringing suit upon the alleged promise upon the next day after it was made, is evidence that he did accept the promise of the defendant. Unless the making of the promise, and its acceptance by the plaintiff, and the ability of the defendant to pay upon the day the suit was brought, are established to the satisfaction of the jury, they should find for the defendant. That only is evidence which satisfies the minds of the jury. That, in considering the deposition of Crabtree, if they believe that he had prevaricated, or that his statements are inconsistent with themselves, or that, from any cause, he has not told the truth, the whole truth, and nothing but the truth, they are not bound to believe him any more than if his character for veracity had been directly impeached. In arriving at the conclusion whether the defendant made the promise or not, all that he said during the same conversation must be taken together, and considered as evidence; and if the jury conclude that any part of what took place negatives the idea that he made the promise as alleged, they are bound to find for the defendant. If the defendant said, in the same conversation, that he was not able to pay, that is evidence in his favor, but it is liable to be rebutted by proof, on the part of the plaintiff, that he was able at the time the suit wras brought; and though it has been proved, on the part of plaintiff, in the deposition of Crabtree, that the defendant, at the time the alleged promise was made, said ‘that he had nothing of his own, but was doing business as agent for other men,’ and was not then able to pay, yet, if other witnesses have proven, to the satisfaction of the jury, that the defendant had property in his possession sufficient to pay it, and was using it and controlling it in his own name, it throws upon the defendant the burden of proving that such property belonged to others and not to himself. What evidence has been admitted showing the circumstancés of the defendant as they appeared since the commencement of this suit — the continuing ability of defendant, if proven to exist, is only a circumstance from which the jury may infer his ability at the time of suit brought, but his ability at that time must also be shown by other testimony, and, until this is shown by the plaintiff, to the satisfaction of the jury, he is not entitled to recover any more than if the defendant had promised to pay after thirty days, or upon any contingency, and suit had been brought before the expiration of thirty days, or before the happening of the contingency. In-regard to damages, if the jury find for the plaintiff, they will award interest upon the amount of the debt from the time of the defendant’s promise to pay.”
    To the giving of this general charge, and every part thereof, defendant excepted.
    Defendant moved the following instructions, which were refused, and he excepted:
    “ 1. That if the plaintiff claims to recover back money paid as security for the defendant, on a note or bond, he cannot recover unless he has proved the execution of the note or bond, and that he became security at the defendant’s request.
    
      u 2. If plaintiff claims to recover money paid as security for the defendant, on a judgment recovered against him as such, he cannot recover without producing the judgment or a copy thereof, in evidence, and proving that he paid the money.
    “3. That, after a discharge in bankruptcy, a mere admission of a prior debt, although accompanied by an unaccepted conditional promise to pay, is not sufficient to bind the bankrupt to pay it.
    “ 4. An offer to pay when able, made by a bankrupt, is not binding on him, unless the offer is accepted by the other party.
    “ 5th. If, in the conversation proved to have taken place between plaintiff and defendant, defendant said any thing tending to negative the acknowledgment or promise alleged to have been made by him, it must be considered in law as qualifying ■ every other expression; and, as the whole must be taken together, it amounts to a refusal to pay.
    “ 6. If, in said conversation between the plaintiff and the defendant, the defendant said that he could not, in justice to his creditors, pay the money claimed, the plaintiff is not entitled to recover unless he has proved, to the satisfaction of the jury, that'the defendant was able to pay the money, in justice to his creditors, at the time this suit was instituted.
    “7. That if the jury shall believe, from the testimony, that the defendant proposed to the plaintiff to pay him the demand in question, when he, the defendant, should be able; but that said plaintiff did not assent thereto, at the time said proposal was made, it is not binding on said defendant; and unless they shall find, from the testimony, that such proposition was made at some other time, and assented to by said plaintiff, they are bound by law to find for the defendant.”
    Fowler, for the plaintiff in error,
    contended that the evidence clearly shows that the defendant below neither made nor intended to make a positive promise; that the undertaking was conditional; that it was not accepted by the plaintiff below; and that there is no evidence of the ability of Samuel to pay.
    It is essential, in order to create a contract, that there should be a reciprocal assent (the aggregaiio mentium of the lawyers) to a certain and definite proposition. (Story on Con., p. 52, chap. 3, secs. 82, 83. Corn, on Con., 2, 3. 1 Com. Dig., title “Agreement,” A. 1, B. 1. I Bac. Abr., title “Agreement,”^?. 67. Payne vs. Cave, 3 Tenn..Rep. 149. 1 Saund. PI. Sf Ev. 141. Cook vs. Oxley, 3 Term. Rep. 653. Chit, on Con. 15.) A mere offer, not assented to, is not sufficient. (Story on Con. 52, ch. 3, secs. 82, 83. 1 Maulé & Selw. Rep. 563.) And where the proposal is made with conditions, the acceptance must be of the conditions also. (Lousdale vs. Brown, 4 Wash. C. C. Rep. 89. Burkvs. Barnard, 8 John. 407. Tuttle vs. Lowe, 7 John. 472. Story on Con. ¡>5, ch. 3, sec. 85. 2 Wash. C. C. Rep. 517. Eleason et al. vs. Henshaw, 4 Cond. Rep. —.) So, of the performance of the conditions, as where a bankrupt promises to pay when able. (Scouton vs. Eislord, 7 John. R. 36. 2 Wash. C. C. R. 517. 1 Bet. Rep. 360. 6 Cond. R. 325. 2 St. Ev. 130.) If the promise is not precise and positive, it is not binding. (2 St. Ev. 131. 8 Cranch Rep. 71. 1 Saund. PI. & Ev. 44. 1 Pet. 360. 6 Cond. R. 325;) and if conditional, and assent to it be refused, the plaintiff cannot avail himself of it after suit brought. Craig vs. Brown, 3 Wash. C. C. Rep. 506.
    The institution of the suit — which is neither a consummation of a contract, nor evidence of it, but is for a breach of a contract —was no evidence of the acceptance of the proposition by Cravens. The proof must show a violation of the contract before suit brought, (Arnold vs. Elliott, 7 Humph. R. 355;) and Samuel was not liable unless his proposition to pay was accepted, and a breach committed. Tuttle vs. Love, 7 John. 472. Chit, on Con. 9 et seq. Pothier on Obli., part 1, ch. 1, sec.2. 3 Tenn. R. 653. 1 Maulé & Selw. 564.
    The deposition of Lewis ought to Have been excluded, as the notice was insufficient, (Reardon vs. 'Farrington, 2 Eng. 364,) and the testimony must have had an influence on the jury prejudicial to Samuel’s cause. Anthoine Sf Marais vs. Coit, 2 Hall’s R. 50. Smith el al. vs. Cairington et al., 4 Cranch R. 70. Nott & McCord’s R. 20. 2 Eng. 366, 455.
    Lingo & Trapnall, also for the plaintiff,
    filed an additional brief, contending that the evidence did not establish a contract or promise binding on Samuel; that it is the essence of a contract that it receive the full concurring assent of both parties, and until such assent is given the whole matter remains in treaty, is subject to the will of either party, and may be broken off or defeated by either party, (Com. on Con. 17,18, 20. Chit, ov Con. 3, 4. Cook vs. Oxley, 3 71 R. 653. Eliason etal. vs. Hen-shaw, 4 Wheat. 225. 4 Cond. R. 433. Pow. on Con. 6 to 10,131, 7 J. R. 470. 12 J. R. 190. 3 J. R. 534. 3 T. R. 149. Pothier on Obli., vol. l,p. 3, 4, 8, 17. 3 Car. &p Payne 267. 1 Pick. 278;) that if the promise of Samuel to pay when able, with the declaration that he then had nothing of his own, and was doing business for others, was a promise to pay certainly, it was not absolute but conditional, (Scouton vs. Eislord, 7 J. Rep. 36,] td pay when he could do so without injury to his creditors; and this promise was not accepted by Cravens: that the institution of the suit was no evidence of Cravens’ assent to, or acceptance of, the terms of the promise, and, as no acceptance was made at the time of the proposition by Samuel, no subsequent acceptance could bind him. That, as the deposition of Lewis was irregularly taken, the Court should have granted a new trial because illegal testimony was permitted to go to the jury. Elting vs. Bank of U. States, 11 Wheat. 59. 6 Cond. R. 216. Livingston et al. vs. Maryland Ins. Go. 7 Or. 506. 2 Cond. Rep. 589. 11 Wheaton 19. 6 Cond. R. 270.
    Watkins & Corran, contra.
    The testimony of Lewis, going to sustain the 1st and 2d counts, which were abandoned, was unimportant, and could have had no effect upon the finding of the jury, and therefore, though improperly admitted, was no cause for a new trial.
    A prior indebtedneás discharged by bankruptcy is a good consideration for a promise to pay the debt, {Lonsdale vs. Brown, 4 Wash. C. C. R. 150. Row. on Con. 350. Chit. on Con. —. Hodge vs. Vavasor, 1 Rail’s R. 413. Johnson vs. Ástell, 1 Leon. 198. Sir T. Raym. 260. 3 Salk. 96. Scouton vs. Eislord, 7 J. R. 36. 1 Cow. Rep. 269. 14 J. R. 178;) and may be either verbal or in writing, as it is not necessary that a promise or contract be in writing, unless it is expressly required to be so by statute, (Chit. on Con. 66,) and there is no such statute as to such promises.
    As to the acceptance of the contract or promise, Cravens was the mere passive recipient of the promise, and it was not necessary that any thing should have been done or said by him to render the promise binding upon Samuel; but if an acceptance was necessary, the testimony shows a sufficient acceptance. In the case of Craig vs. Brown, (3 Wash. C. C. R. 503,) the promise was not made to the plaintiff or his agent, and, as regards the acceptance of the plaintiff, that was negatived by the bringing of the suit before the defendant was able to pay. In the cases of Lousdale vs. Brown, (3 Wash. C. C. R. 86, and 4 ib. 148,) the plaintiff did not say at the time of the promise that he accepted it, but his waiting until the defendant was able to pay was held an implied acceptance. So, the institution of the suit, in this ease, on the promise with proof of the ability of Samuel to pay at the time of the institution of the suit, is sufficient evidence of acceptance.
    Where a party promises to pay when he is able, it is not necessary to inquire further than as to his ostensible circumstances, and if they appear sufficient, they will satisfy the promise. Cole ex. vs. Saxby, 3 Esp. Rep. 159. 1 Com. on Con. 164. 1 Chit, on Con. 154. Thompson vs. Loy, 4 Pick. Rep. 48. Bobovs. Hansell, 2 Bailey R. 114. 10 Mass. R. 141, note (e.) Robbins vs. Otis, 1 Pick. R. 36. 7 John. R. 36. Lonsdale vs. Brown, ub sup.-
    
    The cases in 6 Cond. Rep., 1 Peters Rep., and 2 Wash. Rep., relied on to sustain the position that the condition must be accepted, are where some act was required to be done by the plaintiff before the promise of the defendant was binding, as also the case of Weixell vs. Bussard, 6 Cond. R. 322.
   Mr. Justice Scott

delivered the opinion of the Court.

The aid we have received from the great research and lucid ai’guments of the counsel on both sides in this case, has not only enabled us to arrive at a conclusion satisfactory to our own minds, but also to present our views in a comparatively narrow compass.

The new promise, upon which alone this action is grounded, being conditional, the plaintiff had to prove it as laid in his declaration, and also its acceptance by himself and the ability of the defendant to pay at the time when the suit was brought. There can be no question but that this, like other contracts, to be valid, must have the concurrent assent of each of the parties to the several stipulations. All the authorities state a contract (or agreement, which is the same thing) to be aggregatio menlium. An acceptance is as much the distinct act of one party to the contract as the offer is of the other. None of the authorities cited by either side contradict any of these propositions. But the acceptance need not be express, as when declared by some sign, as by speech, writing, gesture, or other action; but it may be as well given tacitly, to be inferred from silence or inaction, or forbearance of action. So, a refusal to accept- may be, in like manner, indicated as well by action as forbearance of action, according to the circumstances of each particular case. Take, for illustration, the cases of Craig vs. Brown, (3 Wash. C. C. Rep. 505,) Lousdale vs. Brown, (4 ib. 89,) in both of which the principle of acceptance is distinctly recognized.

In the first, where it was proven that the defendant said to the witness “ he would pay the bill of exchange, if he ever got able.” The case turned, for the most part, upon the fact that the new promise was not made to the plaintiff, or to “ any person authorized by him to assent to it, or, in any respect, to bind him.” And, to show that the plaintiff never ratified this, and thus, by means of a subsequent recognition of the witness as his agent in the premises, accepted the promise, the learned Judge alluded to the fact that the plaintiff had, two years before the proof, showed that the defendant was able to pay, instituted a suit on the original bill of exchange as “ record evidence of his dissent,” which he held as sufficient to rebut effectually any presumption of assent by recognition that might have been inferable from the silence of the plaintiff and forbearance to sue from the year 1809, when the promise was made to the witness, till the year 1813, when the first suit was instituted; and goes on to remark that having thus shown his dissent, “he cazmot now be permitted to avail himself of a promise to which he has once refused his assent, because it will now serve his purpose,” the defendant having at length become able to pay. In this case, then, the conduct of the plaintiff in bringing a suit upon the original cause of action two years before the defendant was proven to have been able to pay, was the ground of the conclusion of his dissent: while, in the other case, (that of Lousdale vs. Brown,) where the new promise was made to the plaintiff in person “ to pay when he was able, if the plaintiff would indulge him,” and the plaintiff remained “ silent,” but, from that time forward, “ did actually indulge the defendant for seven years, and until his remedy on the bill was completely barred by the statute of limitations,” the silence of the plaintiff, followed up by this conduct, whereby he lost his remedy, was held “equivalent to an express assent.” And this, although at the end of the first seven years the plaintiff did bring a suit'6n the bill of exchange in which he was defeated : the Court holding that the institution of this suit, although before the defendant was proven actually able, was not sufficient to repel the presumption of tacit assent at the time that the promise was made, which had been shown by silence at the time, followed up for seven years by forbearance, the consequence of which forbearance the perfection of the bar of the statute of limitations resulted.

Both of these cases, then, show that where the acceptance or dissent is not expressly proven by overt acts, it is to be gathered from the particular circumstances of each case, and, consequently, that an isolated fact or circumstance, such as the subsequent bringing of a suit upon the contract, which, in its nature, cannot, in itself, prove either assent or dissent, unless presented as a test by the express terms of a proposition, might equally tend to prove one or the other under different circumstances. The mere determination of the mind, unacted on, can never be an acceptance while any thing that shall amount to a manifestation of a formed determination to accept, communicated or put in a way to be communicated to the party making the offer, would doubtless complete the contract provided the offer be then standing. (Mactier vs. Forth, 6 Wen. 119.) Nevertheless, until the terms of the agreement had received the assent of both parties, the negotiation is open and imposes no obligation on either, (Gleason vs. Hawkins, 4 Wheaton 228;) after acceptance, however, it is equally binding on both.

We think the case at bar may be determined by an examina;tion of the evidence in connexion with one of the instructions given by the Court below to the jury, viz : “ That bringing suit Upon the alleged promise the next day after it was made, is evidence that he did accept the promise of the defendant.”

To determine whether or not this instruction was warranted by the testimony in the casé, we must necessarily look into the whole proof touching this point, to see'if a mere subsequent act on the part of the plaintiff,whereby he would seem to have made most important evidence for himself, by the doing of something which ordinarily is not done to produce evidence, but to enforce a right, was, by its necessary or even natural connex-ion with other facts and circumstances in proof, of such commanding import that it was a test of the acceptance of the conditional promise declared upon.

The testimony, in substance, is, that Cravens took with him the witness to see Samuel, and, in the presence of the witness, asked Samuel for the money which he owed him, to which Samuel answered that he had not the means then, but would pay as soon as he could, that it was a just debt; that he had nothing of his own at all, but was doing business as agent for other men; that he had given up all his property when he took the benefit of the bankrupt lawthat Cravens asked Samuel to give him his note, which Samuel refused to do, saying’ “ he did not think that would be doing his creditors justice”: that witness then, in the presence of Cravens, asked Samuel if he would not give his note, if Cravens would give him time, to which he replied “ he could not give his note ”: that Cravens then left Samuel, somewhat excited: that witness also asked Samuel if he would not let Cravens have the amount in groceries, to which he replied he had not any groceries, and would as soon pay cash. And the next day, after this interview, this action was commenced.

Now, from this testimony, what was the proposition of Samuel? Can it be said that it was equivalent to this: The debt is just; I now here pr.omise to pay it if my ability to pay can be established — prove my ability, and fix my liability if you can. If it was, the bringing of the suit the next day was a pregnant circumstance, showing, by the conduct of the plaintiff, his acceptance of this proposition, and one that would be entitled to much notice in the absence of all other opposing facts and circumstances ; but if there were opposing circumstances, it would be entitled to such weight only as it might seem to deserve in connexion with such opposing circumstances.

It would seem that the jury must have considered the proposition of Samuel equivalent to that we have supposititiously stated, or they could not have rendered their verdict, and we are considering the weight of the testimony, not by way of impeaching their verdict under the instructions given, but to ascertain whether the instruction under consideration was properly given.

Now, so far from showing such a proposition by Samuel as that supposed, we think it clear, from the testimony, that the proposition really made looked exclusively to the future and did ¡not contemplate the present at all. What he did promise is not •to be inferred alone from his promise, in terms, to “ pay whenever he could,” which would have been the case had that promise, in those terms, been put in writing, at the end of their colloquy, and thus cut off every thing else that was said at that time under the rules of evidence relating to written contracts. But the nature and extent of the promise, as it was not put in writing, must be gathered from all that was said at the time. Now, how are his protestations of total want of means, his refusal to pay money or groceries, his refusal to give his note even payable at some definite future time, and his allusions to his duties to those who had credited him since his bankruptcy, to be reconciled with a proposition for instantaneous legal liability, to be solvable forthwith? On the contrary, all these matters are fully reconcilable with an instantaneous legal obligation to be solvable upon the happening of a future contingency; and, therefore, the proposition seems neverthei’less to have included in its terms indefinite indulgence by Cravens, (a counter proposition for definite indulgence having been rejected,) referable, however, to a certain standard for its termination, that is to say, to a future ability to pay after some reasonable time had elapsed for discharging duties to those who had credited him since his bankruptcy.

In this view of what was, we think, the actual proposition of Samuel, the instruction in question was altogether erroneous, for, so far from the institution of the suit, the next day, being evidence of the acceptance of the proposition of Samuel by Cravens, it was the very reverse as showing a conduct on his part totally at variance with an acceptance of the proposition.

But, even if the proposition of Samuel be taken to be that which we have stated supposititiously, the instruction in question would be, in its terms, too broad, when all the testimony bearing upon the question of acceptance is considered: for clearly the circumstance that successive counter propositions were made, such as, for a note generally, for a note by giving time, to take the pay in groceries, the abrupt leaving of Samuel by Cravens, in a state of excitement, and the institution of the suit upon the original demand without any count upon the new promise, were all circumstances tending to negative that the acceptance by Cravens of the proposition as supposed, and these circumstances all being in proof the testimony did not warrant the Court in giving an instruction as to the institution of the suit beyond this, that is to say, that, in view of all the testimony in the case, the fact of the institution of the suit, although it could not of itself prove the acceptance, nevertheless it was a circumstance to be considered by the jury, but only in connexion with the other facts and circumstances in proof on this point, and that, from a consideration of all these together, they must determine whether or not the promise was accepted.

It is true that these several facts touching the question of acceptance, were susceptible of various explanations, as that of of bringing the suit upon the original demand without a count in the first instance on the new promise, might be explained by a supposed opinion of the counsel for. the plaintiff when the suit was instituted that a new conditional promise might be given in evidence on a declaration on the old absolute promise, and that the amended declaration incorporating a count on the new promise might have been the result of subsequent doubts as to this. Still, it was a circumstance that should have been considered by the jury in determining this question of acceptance in connexion with the other circumstances; and so of the other circumstances in proof. Therefore, in any view we take of this case, the instruction we have been considering was clearly erroneous, and, for the reason that it was calculated to mislead the jury, the new trial ought to have been granted.

Note — This case was submitted at the July term, 1847, and continued under, submission until the present term, when, it being suggested that Samuel, the plaintiff in error, had departed this-life, it was ordered that the judgment relate back to the July term, 1848, a period prior, to the death, of Samuel, and.subsequent, to the day of suh-mission. Reporter.

The Court also erred in refusing to give the seventh instruction asked by the defendant, because the proposition made was not, in its terms, a standing proposition, and could have been made obligatory upon Samuel only by its acceptance by Cravens at the time of its being made, under the evidence in the case.

And it was also error to permit the deposition of Lewis to be ■ read to the jury, under the rule laid down in Reardon vs. Farrington, (2 Eng. 366,) and Harris vs. Hill & Relf, (ib. 455;) nor was the objection as to this obviated by the fact that this deposition related to the two counts only which were non grossed, because this deposition also bolstered up the credibility of the main witness, Crabtree, whose credibillity seems, from the charge of the Judge, to have been assailed for supposed “prevarication,” and therefore may have had an important bearing on the verdict of the jury. But this error seems unimportant, as it was not made one of the grounds for the motion for a new trial, or incorporated in the bill of exceptions to the opinion of the Court overruling that motion.

There seems no other error in this record, and for the two errors first pointed out, let the judgment be reversed, and the cause remanded to be proceeded in, and the judgment in this case entered nunc pro tunc as of July term, 1848.  