Chandler v. Duncan , 17 Del. 170 ( 1897 )

Spruancb, J:—

This is an action of assumpsit, commenced April 5th, 1897, against the administrators of Richard B. Duncan, who died March 9, 1897, to recover for services rendered to the deceased more than three years before the commencement of the action.

The second plea of the defendants is the statute of limitations, which is drawn out, and denies that the cause of action accrued at any time within three years next before the commencement of the action. To this there is a general replication, also drawn out, which avers that the cause of action did accrue within three years next before the commencement of the action. On this replication the defendants join issue.

At the trial before referees they, against the objection of the defendants, received testimony of services rendered prior to three years before the death of Duncan and of acknowledgments by Duncan at stindry times during five years immediately before his death of his liability for such services, and of promises by him during the same period to pay for the same: such admissions and promises continuing until a few weeks before his death.

On behalf of the defendants it is contended that under the general traverse to the plea of statute of limitations, testimony was not admissible as to any -admissions or promises in relation to services performed more than three years before the commencement of the action, and that such testimony could only have been received under a special replication setting forth the new promise.

The law applicable to this subject was fully discussed and settle by the Court of Errors and Appeals in 1883 in Newlin vs. Duncan, 1 Harr., 204.

It was there held that an acknowledgment of a subsisting demand, or any recognition of an existing debt, is evidence of a promise to pay it; that the ground on which the statute operates is that after a certain time it is presumed that the debt is discharged, but that an acklowedgment of the debt rebuts that presumption, and the plaintiff recovers not on the ground of having a new right of action, but that the statute does not apply to bar the old one; that a new promise revives the old debt, but does not create a new one. This the Court declared had been the law and practice in this State from time immemorial, notwithstanding the then later decisions in England showing fluctuation and confusion upon the subject. ■ ■

The Court of Errors and Appeals in 1858, in Robinson vs. Burton, 1 Houst., 540, say: “It was decided by the Court in Newlin vs. Duncan in conformity with the uniform decisions and practice, that an acknowledgment of a debt as a subsisting demand will take it out of the act of limitations without an express promise to pay it. There has been no vacillation in the courts on this principle, but some conflict in its application to the facts in each case.’’

Whether it be an acknowledgment of a subsisting or existing debt and of an obligation to pay it—from which a promise to pay may be implied—or an express promise to pay, the rule is the same.

In neither case is the plaintiff required to reply specially the acknowledgment or new promise. If he recovers it is on the old promise and not on the new.

Lord Ellenborough remarked that if this was an entirely new question, and the pleadings were to be made strictly logical, a replication of the new promise might be required, but’ he thought the practice had in his day been too long otherwise to change it.

Surely, in view of the decision and practice in the courts of this State, it would be most-unwise for us to, adopt the rule insisted on by the defendants.

We are of the opinion that, under the pleadings in this case, the testimony objected to by the defendants was properly admitted by the referees, and therefore the rule is discharged and the report of the referees confirmed.