Ross v. Ross , 20 Ala. 105 ( 1852 )

PHELAN, J.

Tbe objection to tbe claim of Ross, because it was not on file at tbe time Pearson called to examine it, was properly overruled. Tbe claim bad been regularly filed, supported by affidavit, but tbe Probate Judge bad given permission to Ross to withdraw tbe claim. By mistake both note and affidavit were taken from tbe office. The claim having been once regularly filed in time, secured to it all the advantage that the law gives to that act. It was the duty of the judge, to have kept a list or docket of claims for the inspection of the creditors, but if he does not do so, and permits a claim to be withdrawn temporarily for a particular purpose, the claim will not lose its place as one on file. It is moreover plain, that no injury was done, for Pearson filed his objection to the allowance of this claim, although it was not on file.

The demurrer to the declaration was also properly overruled. It is based upon the idea that a man cannot sue himself. That may be true upon general principles, but the answer to the objection is, that in this case the statute authorizes and directs that this very thing shall be done, and there was indeed no better course to be devised to regulate the contests in the Probate Court between conflicting creditors. The imposition of costs is placed fully under the discretion of the Probate Judge. The statute relating to this subject is in these words: “ The court shall cause an issue to be made up between such claimant as plaintiff, and the administrator, or the contesting creditor in the name of the administrator, as defendant, by pleading thereon in the same manner as if the claimant had sued the administrator at common law.” — Clay’s Dig. 194, § 11.

This brings us to the consideration of the charges of the court.

The court below charged the jury: That any expression which amounted to an admission that the debt was due, or that the liability existed at the time, took the case out of the statute of limitations, and revived the original cause of action.

And further: That such an acknowledgment is an implied promise to' pay, and is equivalent to an express promise to pay; and it has the same effect, whether it is made to the creditor or to another person, or whether it is made before or after the time at which the statute would create a bar to the action.

In this case it will be observed, that the bar of the statue was complete at the time of the conversation with Burnham, so that a part of the last charge is abstract.

We have held in a case decided at the present term, Townes & Nooe, Ex’rs v. Ferguson, that when the bar of the statute of limitations is complete, it is necessary to remove that bar that there should be, not only a subsequent acknowledgment of the correctness of the plaintiff’s demand, but also a manifestation of willingness to pay it. In this we have but followed the current of the later decisions on this much disputed question.—Angell on Lim. 247 to 250, and authorities cited; Greenl. Ev. § 40; Lowther et al. v. Chappell, 8 Ala. Rep. 353, and authorities cited.

We did not, by that decision, mean to be understood as saying that nothing but an express promise to pay would suffice ; because, if that had been otu intention, it would have required but a few plain words to put that intention beyond the reach of doubt or controversy. We meant no more than to adopt and follow the doctrine which is declared by Mr. Greenleaf on a review of all the cases, tobe the “general doctrine now well established,” and which he lays down in these words; “ That the acknowledgment must not only go to the original .justice of the claim, but it must admit that it is still due."

It is not perceived that the instructions given to the jury conflict with this doctrine. If the admission was that the debt was due at the time of the admission, or, what is the same thing in other words, that it was a liability which existed at that time, it brought the case within the rule laid down by Greenleaf, and adopted by this court in the case of Townes & Nooe v. Ferguson; and the first charge was correct.

The correctness of the second charge, the main and most important feature of which is, that such an acknowledgment — that is, of a subsisting debt or liability — is an implied promise to pay, and as such, is just as effectual as an express promise to take the case out of the statute, follows as a necessary consequence of the first.

The charge refused is in these words: “That an acknowledgment of the justness of the debt would only postpone ■the bar of the statute of limitations six years longer, but that it took an express promise, or something equivalent to an express promise, to revive the original cause of action after the statute had effected a bar.”

To a mind unaccustomed to tbe precision so very necessary generally to correct decisions in questions of law, there may not appear, at tbe first glance, any good reason wby, if tbe charges given are correct, it would not be proper to give tbe charge that was asked. In one light, and upon one construction, that charge is correct, and upon another it is incorrect; and as it admits of two constructions, one of which was calculated to confuse and mislead the jury, and as no explanation or qualification was given by the party asking it, the court properly refused it. When this charge affirms, “That it took an express promise, or something equivalent to an express promise, to revive, &c.,” if it is to be construed as signifying that it took an express promise, or something equivalent to an express promise in law to revive, &c., it was correct. That was what the court had just declared. But if it is to be construed as signifying, that it took an express promise, or something equivalent to an express promise in terms, it is incorrect. The two, though generally equivalent in law, as the foundation of an action, are in no other respects equal or equivalent; not in the terms which create them, at any rate, for here they are strictly opposites, as the words “express" and “implied,” of themselves import: these are antagonistic terms. To say, then, in a charge to a jury in this case, that it took an express promise, or something equivalent to an express promise, without more, without noticing in any manner this distinction, was calculated to mislead, and as it was not the duty of the court to modify or give precision to the charge, as asked, it was properly refused.—See Morrison v. Wright, 7 Por. 67; Carmichael v. Brooks, 9 Por. 330.

We find no error in the record, and the judgment below is affirmed.