means whereof the said plaintiff lost all benefit and advantage from his said insurance, and is damnified to the amount of $490.85, for which sum, and interest from May 26th, 1854, and costs, he demands judgment.

WILLIAM BARNES,

Plaintiff's Attorney.

(No. 56.)

Complaint on breach of promise to marry.

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts, constituting her cause of action:

That on or about the 10th day of January, 1858, at the city of Troy, the plaintiff being sole and unmarried, the said defendant, in consideration of the mutual promise of the plaintiff to accept and marry him, faithfully promised to marry the said plaintiff.

That confiding in the said promise of the said defendant,

1 A complaint in an action for a breach of promise of marriage, alleging, in substance, in reference to a promise, that, in conversation between the parties at a time and place specified, the plaintiff asserted, among other things, that the defendant had promised to marry her; and that, at the same time and place, the defendant said to the plaintiff, he acknowledged he had done wrong in promising her as he did, and hoped she would forgive him; but if he should marry her, as they had talked, and she go to his house, it would make both miserable for life; and further alleging, that the defendant said to the plaintiff, in reply to her entreaties, she must try to forget it, and acknowledged he had done wrong, and that he was sorry for it, without otherwise avering a promise, does not state facts sufficient to constitute a cause of action. (Buzzard v. Knapp, 12 How., 504.)

the plaintiff has remained and continued, and still is, sole and unmarried, and has hitherto been, and is still, ready to marry the defendant.

That though a reasonable time has elapsed, since said promise and undertaking, for the defendant to marry the plaintiff, yet, although requested so to do, he has neglected and refused, and still does neglect and refuse, to marry the plaintiff, to her damage of $5,000 [or if defendant has married another person, so allege the fact.] Whereupon the plaintiff demands, &c.

(No. 57.)

On a debt barred by the statute of limitations, but revived by a new promise.1

Title of the Cause.

The plaintiff complains of the defendant and alleges: That on the 1st day of March, 1849, the defendant made and executed to the plaintiff his promissory note for

It is held at Special Term, in the case of Butler v. Mason, (5 Abbott, 40), that the plaintiff cannot anticipate in his complaint, and avoid the defence of the statute of limitations. Notwithstanding that case, however, it seems to me that the only proper way to set forth a debt which has been revived by a new promise is, as given in the present form. The case above alluded to simply held that it was surplusage to allege in the complaint, on a claim appearing to be barred by the statute, that the defendant had resided out of the state, by way of anticipating and avoiding the defence. That, however, is a different thing from a claim actually revived by a new promise. The new promise, and not the old debt, is the cause of action, and the old debt itself is merely the consideration to support the new promise. (See Pleadings, 267, 269.) The new promise, therefore, should be directly

the sum of $500, payable three months after date, for value received, and that said note is wholly unpaid.

That on or about the 3d day of June, 1857, in consideration of the said indebtedness, the said defendant in writing,1 under his hand, promised to pay the said note, but the said defendant has not yet paid the said note, or any part thereof.

Wherefore the plaintiff demands judgment against the defendant, for, &c.

alleged as the cause of action, and damages claimed for the breach of it. The decision in Butler v. Mason, above referred to, is adverse to the case of Genet v. Tallmadge (1 Code. R. N. S. 346.) It is contrary, also, to the principle laid down in Bracket v. Wilkinson (13 How., 102), holding that a complaint might properly anticipate and avoid a defence of payment. Precisely the same rule would enable the plaintiff, in all cases, to anticipate in his complaint, and avoid the possible defence of the statute of limitations; and I see no good reason why this may not be allowed, though perhaps not absolutely necessary. (See Lefforts v. Hollister, 10 How., 383; People v. Arnold, 4 Comst., 508; Pleadings, 268, 269, 330, 689.)

1 The new promise should be alleged to be in writing (section 110, Code), or facts averred to show some payment of principal or interest, otherwise the promise is unavailing. (Pleadings, 268, 329, 330.)

It has been held, under the Code, that when a memorandum or writing is necessary to the validity of a promise, it must be averred in the complaint that the promise was in writing. (Pleadings, 267, 330; Thurman v. Stevens, 2 Duer, 609; Lervy v. Shaw, 2 Duer, 626.) A different rule, however, has been recently recognized in the Supreme Court, in the case of Livingston v. Smith and others (14 How., 490), in which it was held that it was not essential that the pleading should show affirmatively that the agreement (to purchase or convey lands) was in writing. It will be assumed to be an agreement having a legal existence.

The better and safer course, however, in all these cases, notwithstanding this decision, is to allege the fact of the agreement being in writing.

The plaintiff complains of the defendant and alleges the following facts constituting his cause of action:

1

That on or about the day of, at the, &c., the defendant, intending to injure this plaintiff in his good name, fame and credit, and to bring him into public scandal and disgrace, and to cause it to be suspected and believed by his neighbors, and other citizens of the vicinity, that said plaintiff was guilty of the offences and misconduct hereinafter mentioned and charged upon him, in a certain discourse, which said defendant then and there had in the presence and hearing of one A. B., and divers other citizens, falsely and maliciously spoke of and con

2

1 The old forms in slander are, that the defendant "contriving and wickedly and maliciously intending." This is altogether unnecessary, and indeed it seems unnecessary to set forth any motive or intent at all in words actionable per se; but a simple allegation that the defendant falsely or wrongfully spoke the words, &c., would, no doubt, be sufficient. As to what a complaint should contain in an action of slander, see Pleadings, 271-274.

2 The complaint must show that the words were spoken in presence of some person or persons. (Pleadings, 274.) It must also show a malicious intent in the defendant (1 Chit. Pl., 428-438), and the above allegation is, no doubt, sufficient for that purpose.

cerning the plaintiff1 these false, malicious and defamatory words following, that is to say:

1 By section 164 of the Code, this general allegation, in a complaint in slander or libel, renders it unnecessary to state any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose. That is to say, in all cases where the application of the words spoken to the plaintiff is uncertain, and they can be construed to apply to him only by reference to certain other allegations or facts, it is not necessary to insert in the complaint those extrinsic allegations which show that they were intended to apply to the plaintiff, but this general averment is sufficient. Thus, for example, as in the above precedent, the slanderous words alleged are not in themselves necessarily applicable to the plaintiff; and under the old rules of pleading an averment was necessary that the plaintiff, at the time, lived "in the white house just across the bridge," and that a watch had previously been taken from the person mentioned in the complaint, &c., in order to point the language made use of directly to the plaintiff, to the exclusion of any other person. But by the Code it is now sufficient merely to allege in the pleading that the words were spoken "concerning the plaintiff," and if that allegation is denied in the answer, the plaintiff is bound to establish, on the trial, the facts showing that they were so spoken.

It is supposed that this is the only change that the Code has made in this respect. Thus, if the words themselves are so ambiguous or doubtful as to render the proof of extrinsic facts necessary to show them actionable at all, the necessity of stating these facts by an explicit averment is precisely the same as it has always been. The words, "You swore false," " He swore to a lie," &c., standing alone, will not support an action, without a colloquium showing that the words referred to material testimony in a trial or other legal proceeding; because, as matter of law, they do not impute a crime punishable in a temporal court, for a man may swear false without taking an oath in any court, and may swear false in a court of record, in a point not material, without incurring the guilt of perjury. (See Pike v. Van Wormer, 5 How., 175; 6 How., 99; Kinney v. Nash, 3 Coms., 177; see, also, Pleadings, 271, 272, and cases there cited; Blaisdell v. Raymond, 14 How., 265; Caldwell v. Raymond, 2 Abbott, 193.)