Dennis v. Sharman , 31 Ga. 607 ( 1860 )

By the Court. —

Eyon, J.,

delivering the opinion.

The main issue between the parties in this case is: Whether .the cause of action of defendants in error was barred by the statute of limitations at the commencement of the suit? and that depends, for the present, at least, upon the question, whether the credit endorsed on the note sued upon, of the date of ist March, 1846, of one hundred dollars, is such an acknowledgment of the existence of the debt, at that time, as from which a valid promise to pay the debt, either expressly or by implication, may be presumed, so as to> constitute a new point, from which the statute should then begin to run anew ?

It is claimed by the plaintiff that it is not, for two reasons :

ist. That no such payment was in fact made at that time.

2d. That if the payment was actually made, that it was made on Sunday — the first day of March, .1846, being the Sabbath day — and that no binding promise to pay the debt, either expressly or by implication, could be raised from a payment on that day, either to take the case out of the statute of limitations, or to make a new point from which the statute should begin to run, but that- such acknowledgment, however explicit for that purpose, was void and of no effect.

The first question is one of fact, and, therefore, more appropriately for the consideration of a jury; and as there is a conflict of evidence on the point, we deem it best not to express our opinion on it, especially as we shall send the case back on another point, when the same question will, or may, be submitted to another jury.

As to the second question on that point, the plaintiff in error requested the Court below to charge the jury, that “if they believed the payment on the note, endorsed as having been made on the first March, 1846, was made on that day, and it was the Sabbath day, it could not raise a binding promise to pay the debt, so as to take it out of the statute of limitations.” This charge the Court refused to give, and this refusal forms the main ground of complaint to the rulings of the Court in this case.

The legal effect of a partial payment on an existing debt by a debtor is, not only to reduce the amount of the debt to that extent, but from that act the law implies an acknowledgment that the whole debt is due and owing, and from this acknowledgment a promise of payment is presumed, that is binding on him who makes the payment, as well as all others standing in the same relation to the debt as himself. It is upon this principle or presumption, and none other, that a valid partial payment constitutes a new point from which the statute of limitations must run, instead of from the time when the debt first became due. And it is now too firmly established by judicial precedent to be shaken or overturned, although it has been gravely doubted by the most eminent judges and lawyers as an innovation by the Courts on the statute of limitations. But do these legal consequences or presumptions flow from a partial payment made on the Sabr bath day? Whether they do or not, depends entirely upon the question, whether the act so done on. that day is prohibited by law? for if the act — that is, the payment on that day —was in violation of, or prohibited by, law, then all contracts, obligations and promises, either express or implied, growing out of, or dependent on, the act, is null and void, whether so declared to be by the law of which the act was in violation or not. This has been the uniform ruling of the Courts, where the common law is of force, since Drury vs. Defontaine, 1 Taunt. 135, where it is said by Lord Mansfield, “if any act is forbidden under a penalty, a contract to do it is. now held void,” and such has been the constant doctrine of this Court. A familiar instance of which may be seen in the many adjudications in respect to.the Statute of 32 Hen. VIII, or “The bill of Bracery or Buying of Titles,” as it is sometimes called. That Act does not declare deeds made in violation of its provisions to be void, but affixed a penalty to the making or buying titles adversely to the possession. This Court uniformly held the deeds to be void, not because the law declared them to be so, but because the act was prohibited. If an act is prohibited or a penalty affixed by statute to the doing of an act, no1 valid contract, obligation or promise can be entered into, created or made, either expressly or by implication, that has its foundation in the violation of such law. The case put by counsel in the argument, under the law against usury, is not an exception; for in that case, it is only the interest that is declared to be void; the principal is expressly authorized by the statute . to be recoverable. Now, was this payment of 1st March, 1846 —that being the Sabbath — a violation of any law then in force in this State? We are clear that it was. The first clause of the second section of “An Act for preventing and punishing vice, profaneness and immorality, and for keeping holy the Lord’s Day, commonly called Sunday,” approved March 4th, 1762, is in these words:

“No tradesman, artificer, - workman, laborer or other person whatever shall do or exercise any worldly labor, business or work of their ordinary callings on the Lord’s day, or any part thereof; (works of necessity or charity only excepted) ; and that every person being of the age of fifteen years and upwards, offending in the premises, shall, for every such of-fence, forfeit the sum of ten shillings.”

Nickelson, the defendant’s intestate, to whom the payment was made, and to whom the note belonged, was at the time a merchant in the town of Greenesboro’, and the payment was made to him by Willey, on the 1st March, 1846, at the desk of Nickelson, in his store; and the further proof is, that that day was the Sabbath day. The cash-book of Nickelson, that was in evidence, shows that he was daily (Sundays excepted) in the habit of receiving, collecting and paying out money; that was his ordinary calling — his daily business. The receipt of this money on this note by Nickelson, as a payment to him, was in the exercise of his worldly business; was a work of his ordinary calling — not of charity or necessity, and was therefore plainly and emphatically within the letter and spirit of the Act which it intended to prohibit and suppress. Hence, according to the rule we have stated, no valid and binding promise to pay the debt, either expressly or by implication of law, can be presumed from such illegal act; or if a new promise can be presumed, it is null and void, and does not take the case out of the statute of limitations, or constitute a new point from which the statute should begin to run.

The Statute of 29 Car. II, chap. 7, §6, enacts that “no person whatsoever shall do, or exercise, any worldly labor,' business or work of their ordinary callings upon the Lord’s day.” Under that statute, the British Courts have uniformly held, that all contracts or obligations made on that day, or which grew out of, and depended upon, acts done upon that day, in violation of the statute, were void, and could not be enforced. There has been some difference, at different times, and by different Judges, as to what acts done on that day were within the prohibition; 'for instance, it was held in some of the cases, perhaps the majority, that unless the act done, out of which the contract grew, was of the ordinary calling of the party to be affected by the act, that the contract was not void. In others, again, it was held that all contracts based upon acts done on the Sabbath day, of a worldly business, were void (unless of charity or necessity), whether of the ordinary callings of the parties or not. See Drury vs. Defontaine, 1 Taunt. 135; Tennell vs. Ridler, 11 Eng. C. L. 261; Smith vs. Sparrow, 12 Eng. C. L. 253; 52 Eng. C. L. 479. It is altogether unnecessary to inquire which class of these decisions is the better construction of the statute, as either of them is equally fatal to the defendants in error. Similar statutes to that of 29 Car. II, ch. 7, §6, and of ours of 4th March, 1762, to enforce an observance of the Sabbath, have been passed by many of our sister States, and in all of them, I believe, when the question has been made, the Courts have held contracts made on that day to be void, whenever the acts done on which the contract .depended were prohibited by the statute. O’Donnell vs. Sweeney, 5 Ala. 467; Dodson vs. Harris, 10 Ala. 568; Saltmarsh vs. Tuthill, 13 Ala. 402; Hussey vs. Roquemore, 27 Ala. 289; Bumgardner vs. Taylor, 28 Ala. 678; Towle vs. Larrabee, 26 Maine, 468; Frost vs. Hill, 4 N. H. 157; Lyon vs. Strong, 6 Verm. 219; Wright Geer, 1 Root, 474; Fox vs. Abel, 2 Conn. 584; Story vs. Elbert, 8 Con. 27; Adams vs. Hamell, 2 Doug. (Mich.) 73; Sink vs. Clement, 7 Blkford, 479; The City of Cincinnati vs. Rice, 15 Ohio, 225.

But it is insisted that this was not a contract — not an obligation to pay money, growing out of any agreement then made to do so, or of a thing done in violation of the Sabbath day, but that it was a mere admission that the debt was then, due; that it had not been paid, and that it was as competent to make such admission on that day as any other, and that when so made, it was as competent and legal' to use such admission against the parties, as evidence of the existence of the debt at that time, as though it had occurred at any other time, and that to hold otherwise, is to hold that a party could not tell the truth on Sunday.

If it was true that the defendants only proposed to use the credit as evidence of an admission that the debt was then due and had not been paid, but was an existing debt, there could be no serious objection to it for that purpose; but that is not the use proposed to be made of this credit, but a much more important and extended one; and that is, as an acknowledgment of that character from which, in the eye of the law, a promise to pay the balance of the debt is presumed. As proof of the existence of the debt at the date of the credit, it was valueless; for it was a debt without the credit. It had not been paid, or barred by the statute, and so it could have been made to appear, whether a payment was made or not. The argument of counsel rests on the idea that anything that negatives the idea of payment, excludes the operation of the statute from the time the debt is proved to be in existence. Such an idea is altogether fallacious, for, if allowed, it would wholly defeat the statute. This argument is in accordance with what the Courts at one time held, that an acknowledgment defeated the statute by repelling the presumption of payment. Upon this construction it was held that an admission would prevent the bar, although it was coupled with a refusal to pay and a distinct avowal to claim the benefit of the statute; but such a principle has long since been exploded, and it is now fully established that an acknowledgment to prevent the operation of the statute, must be so made as to amount, in the eye of the law, to a new promise, or from which the Court can presume a promise. Ang. on Lim 218; Tillinghast Bal. 190; Prince vs. Boisselet, 9 S. & R. 131; Hudson vs. Carey, 11 id. 10; Baily vs. Baily, 14 id. 195; Dean vs. Pitts, 10 Johns. Rep. 195; Johnson vs. Beardslee, 15 Johns. 4; Martin vs. Williams, 17 id. 331; Bangs vs. Hall, 21 Pick. 323; Perley vs. Little, 2 Greenl. 97; Atwood vs. Colburn, 4 N. H. 315. From these authorities it is safe to say, that mere proof of the continued existence of the debt does not stop the running of the statute, but the acknowledgment must contain an express promise to pay, or be so unequivocal that the law will imply a promise; so that at last it is the promise, whether express or implied, that saves the case from the operation of the statute, and nothing short of that. If, then, the promise relied on to take the case out of the statute is made or inferred from an act done in violation of a public law, as this was, such promise is void, or rather the law will not presume a binding promise from such illegal act. The identical •question involved in this case was decided by the Supreme Court of the State of Alabama, in Bumgardner vs. Taylor, 28 Ala. Rep. 787. In that case, suit was brought on two notes, to both of which the statute of limitations was plead. The plaintiff, to take the case out of the statute, proved the promise of the defendant to haul cotton to- pay the notes. The promise was made on Sunday, and at the time, the statutory bar had attached to one of the notes; to the other it had not, but had before suit brought. On these facts, the Court held — Waiter, J.: “The only question of this case which it is necessary for us to notice is, whether a promise made on Sunday will take a contract out of the statute of limitations? So far as this question is concerned, then, there is no distinction between a promise made in the words of the party and the promise which is implied from a distinct admission of the justness of the debt and a liability to pay it. It would be unreasonable to place the promise inferred from an admission upon a more favorable footing for the creditor than a promise distinctly and designedly made.” And after reciting the decision of That Court in Hussey vs. Roquemore, 27 Ala. 289, the Court adds: “The question in this case is settled by the principle involved in that decision, and that the judgment of the Court below, ruling the promise void and ineffectual to take the case out of the statute of limitations, because made on Sunday, should be affirmed.” In Hussey vs. Roquemore, the debtor promised an agent of the plaintiff, on Sunday, at church, that if he would not sue him on .the plaintiff’s debt to the next term of the Court, he would pay it. The plaintiff acted on this promise, and did not sue. Subsequently, on suit brought, the plaintiff relied on this promise. The Court decided that it was void, and not binding on the defendant, because made on Sunday, in violation of a statute of that State that prohibits all “worldly labor, business or employment, ordinary or servile work (works of necessity and charity only excepted) on the Christian Sabbath;” to which is affixed a penalty of two dollars for each offence against the same.

Counsel for the defendant in error refers to Sanders vs. Johnson, 29 Ga. 528, as an adjudication of the question involved in this case. We do> not think so. The decision in that case was put upon the ground expressly, that the case was not within the provisions of the Act of the 4th March, 1762. This we hold to be within the letter and spirit of that Act.

The charge requested ought to have been given. If the credit was made on Sunday — and it is. not denied but that it was — ¡it can not serve to prevent the statutory bar from attaching to the debt.

Plaintiff in error also^ excepted to the charge of the Court as given — “that it was not necessary for the promises to pay the debt to be in writing, and that the statute of limitations of 1856 did not apply to this case.” But this point was withdrawn by counsel for plaintiff in error, in the argument.

JUDGMENT.

Therefore, it is considered and adjudged 'by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in refusing, upon the request of counsel for defendant, to charge the jury that if they believed the payment on the note endorsed as having been made on the 1st March, 1846, was made on that day, and it was the Sabbath day, it could not raise a binding promise to pay the debt so as to take it out of the statute of limitations.