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presumption and remove the bar of the statute. But if it be looked upon as a statute of repose, i. e., if its foundation be the expediency of refusing to enforce a stale claim, whether paid or not, it is obvious that a mere acknowledgment of indebtedness will not deprive the debtor of protection, it being to the public interest that stale claims shall not be recovered. In order, then, to remove the bar of the statute when it is regarded as one of repose, there must be not merely an acknowledgment of indebtedness, but a new promise to pay. And this is the modern view, established in accordance with the earliest decisions. It seems, then, that the new promise (which in many States must be in writing, following Lord Tenterden's Act, 9 George IV. c. 14) must be either an express promise or an acknowledgment made in such terms or under such circumstances as to amount, in effect, to a promise. No new consideration is required to make this new promise binding, the latter being regarded as the waiver of a protection or privilege rather than the making of a new agreement. As regards the application of the statute, it is generally held that it begins to run from the time the creditor could have brought his action; and when started, its operation cannot be arrested. There are, however, certain disabilities which, if existent at the time the creditor could have sued and such as to prevent him from instituting his action, suspend the running of the statute until their removal. These are generally infancy, imprisonment, insanity, absence from the State or the United States. In such cases the statute does not begin to run until the disability is removed. Generally, the statute declares "that no action shall be maintained," and where this language is employed it is held that the bar of the statute applies to the remedy only and does not render the debt itself void. As applying only to the remedy, the application of the statute is to be determined by the lex fori and not by the lex loci contractus, if these differ. The statute does not run against the United States nor against the States.

The wonderful development of the country in the latter

half of the period under review, and the consequent addition of many new sovereignties to the Union, each with its local laws, have necessitated careful judicial consideration of, and given practical importance to, the Law of Place. And it may be remarked in passing, in connection with this topic, that the change in the relative importance of the two classes of property, real and personal, has brought about some very interesting modifications of the principles set forth by the older writers on the Law of Place with regard to personalty.

The seat of the contract.

But with respect to Contracts, it seems to be settled that the validity of a contract concerning realty is determined now, as always, by the law of the place where the property is situated. If the subject-matter of the contract be personalty, the rather loose language of the older time, viz., that validity is determined by the law of the place where the contract was made, has been more sharply defined, and the lex loci contractus is now generally held to be the place of performance of the contract, in the absence of anything which will negative this interpretation. This rule is, no doubt, founded on the very common-sense view that parties intending to carry out an agreement at a certain place will naturally contract with reference to the laws of that place. In all matters concerning procedure, rules of admission or exclusion of evidence, and remedies, the law of the forum is the law that controls.

Finally, it must be noted that in the Constitution of the United States there is a provision regarding Contract which The obligation has already been the occasion of many important of a contract. judicial decisions, and which in the near future promises to be productive of questions of most serious difficulty. This is article 1, sec. 10, which provides that "no State shall pass any law impairing the obligations of contracts." Referring to this clause, Judge Cooley says:1

"The prohibition passed almost without comment at the time, and in the careful and very full discussions of the Federalist it 1 Principles of Constitutional Law, chap. xvi. p. 311.

...

is barely alluded to twice. . . . Apparently nothing was in view at the time except to prevent the repudiation of debts and private obligations, and the disgrace, disorders, and calamities that might be expected to follow. In the construction of this provision, however, it has become one of the most important, as well as one of the most comprehensive, in the Constitution; and it has been the subject of more frequent and more extended judicial decision than any other."

He goes on to show that the prohibition is aimed generally at the legislative power of the State, and that a State Constitution is therefore a law within the meaning of the clause. But a statute, private or public, is not generally a contract, although the State may make a contract (such as, for instance, grants of land or special privileges, which are expressed in the terms of a statute). But, except in such cases, there is no contractual relation between the State and the citizens created by a statute; no individual can claim any vested right under it, and the State, therefore, may modify or repeal it at pleasure. Nor is the appointment to a public office or a grant of statutory privileges, such as exemption from military or jury duty, a contract; the former being a delegation of trust and the latter nothing more than a license.

But notwithstanding the constitutional provision under consideration, the contracting power of the State is limited, in that it cannot, by contract, bargain away any of the essential powers of sovereignty, such as, for example, the right to appropriate private property to public uses under eminent domain. Again, while the State may grant exclusive privileges which are binding as contracts, such as to establish a ferry, or to supply water or gas to a city, it cannot be prevented making another grant for the same purpose; it must, however, compensate the first grantee for the property right thus taken from him.

In the celebrated Dartmouth College case1 a large exten

14 Wheaton (United States) Reports, p. 518.

sion of the domain of Contract was established by the decision that a charter was a contract within the meaning of the constitutional provision. The effect of that decision was to make it customary to add to charters a clause giving the State the power to alter, amend, or repeal at will.

In another aspect, the constitutional provision relating to Contract has been under the consideration of the Federal judiciary. It has been necessary on many occasions to consider the extent to which the obligation of Contract may be impaired by the Police Power of the State. The difficulty in many cases seems to lie between regulation and destruction. It is admitted that all contract rights are subject to State regulation, and that the State may, in the exercise of its Police Power, interfere whenever necessary to protect the peace and order of the community, and the health, safety, and morals of the citizens. To what has been said in relation to this subject in a previous chapter (that on Constitutional Law) it need only be added that under this particular constitutional provision the State is prevented from withdrawing remedies for breach of contract which may have been in existence at the time the contract was made, unless it provide some other means by which the creditor may obtain substantially the same satisfaction that would have been enforceable by him at the time the agreement was concluded.

V

TORTS

1701-1901

BY GEORGE D. WATROUS, D.C.L.

BEARING in mind the purely practical development of the Common Law, and its advance step by step, not according to a priori requirements, but in response to the exigencies of the times, it should not surprise us to find that the law of torts (or private wrongs) has gone forward pari passu with social progress, and that in its modern form it faithfully reflects modern conditions of life. No man nor body of men has laid down, or could lay down, in advance, what would be the lines of its development, either by legislation. or litigation.

Since that beneficent statute of Westminster II. (13 Edward I., chapter 24), authorizing clerks in chancery to frame new writs in analogy to existing ones, analogies have multiplied, and this branch of the law, dealing as it does with rights between man and man, has changed, as social relations have changed. It is little to be wondered at, therefore, that the living law of torts, as found in the decisions of our courts, should at first sight seem to have but little in common with that of two centuries ago. This apparent difference, however, is more in respect to the subject-matter under consideration, or in the forms of procedure, than in the principles which underlie them.

It is a common remark of those among the older members of the bar that even in their time they have seen great

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