M'Gehee v. Greer , 7 Port. 537 ( 1838 )

ORMOND, J.

— Scarcely any subject has been more prolific of disputes and subtle distinctions, than the statute of limitations, and it is a matter greatly to be regretted, that the plain letter of the statute has ever been departed from, In the case of St. John vs. Garrow, (4 Porter, 223,) it was held, that an acknowledgment of a subsisting liability, will take a case out of the statute; and in the case of Watson vs. Dale, (1 Porter, 243)—that a payment endorsed on a note, would remove the bar of the statute. A payment on a note is, we think, precisely equivalent to an admission, that at the time of the .payment, the debt is due; but it is necessary that the party relying on such payment, should prove the date of the payment: to permit that fact to be established by the credit entered on the note, would be manifestly allowing the party relying on it, to make evidence for himself.

The question, then, which the court, under the issue, had to try, was, whether the payment relied on to take the case out of the statute, was made at the time it bears date. This fact is to be ascertained by the testimony.

The witness who presented the note to the defendant in error, states that when he called on him for payment of the note, he admitted it was just, but that he was entitled to a credit on account of a claim against a certain Bend; the witness then informed him that there was such a credit on the note, and that according to his best recollection, he showed the note and credit to the defen - dant.

The court being, by the demurrer to evidence, substituted for the jury, and required to draw' all such conclusions from the testimony as a jury could reasonably infer, let us enquire what the effect of this proof is. The witness, it is true, does not swear positively that the defendant saw the note, and the credit endorsed on it, but as mathematical certainty is not required, and as there was no testimony impeaching the recollection of the witness, the testimony must be held as establishing the fact, that the defendant saw the credit on the note. The language used by him, it is true, implies something short of absolute certainty, but this is the case with all parol testimony. In every case, a witness swears according to his best recollection, and whether he expresses himself thus or not, there is always a possibility that he may be mistaken. We cannot doubt that a jury would consider the fact as proved.

What is its effect ? It is an established principle, that silence, when a statement is made from which a charge is to arise, is sufficient to authorise a jury to infer that the charge is true. This inference is founded on an obvious principle of human nature, and is constantly acted on, not only in the jury box, but in the business of life. ■It is by no means conclusive, and is perhaps the weakest of all testimony, on which to form a verdict; yet it is a conclusion which the jury may draw from the fact. It is a presumption which canpot be considered a violent one. If gentlemen will, by this proceeding, take from the jury their legitimate duties, and devolve them on the court, they must expect that the court will incline against them, in all cases where the tendency of the proof is doubtful.

We think, therefore, that as it is fair to infer that if the date of the credit had not been correct, the defendant would have objected to it, for that cause — it must be considered as proven, that he admitted the credit as made. This brings the case within the influence of the decision cited from 4th Porter, which is also an authority to show that the proof was properly admitted, under a general replication to the plea.

We have been urged to decide in accordance with the latest decisions, that an express promise is necessary to take a case out of the statute of limitations.

We understand it to be well established, that a payment of part of the debt removes the bar of the statute, so as to prevent the statute from running, previous to such payment.

Tlie judgment of the court below is reversed, and judgment to be rendered here.

Judge Collier having once been of counsel in this case, did not sit at the argument.