Lincoln Academy v. Newhall , 38 Me. 179 ( 1854 )

Tenney, J.

— The suit is upon a promissory note, admitted to have been given by the defendants to the plaintiffs, and attested by a subscribing witness, at the time it was executed. It became payable according to its tenor on November 24, 1829, and upon it are six indorsements of various sums at different times; the first being on May 8, 1830, and the last on December 5, 1838. The indorsements appear to have been for payments made by Amos Newhall; and it is agreed, that they were for actual payments, according to the indorsements.

The defence relied upon is under the statute of limitations. The last indorsement being before the Revised Statutes took effect, which provide in c. 146, § 27, that none of the provisions of that chapter respecting the acknowledgment of a debt, &c., shall apply to such acknowledgment, &c., made before that chapter shall take effect as a law, the provisions in § 21, that the acknowledgment or new promise of one joint contractor shall not make liable another, can have no effect upon this case.

By the law as it stood on December 5, 1838, an acknowledgment of one joint promisoi’, which would take a case out of the statute, as to him, would equally affect the other co-promisors. Shepley v. Waterhouse, 22 Maine, 497.

The question here presented is whether the acknowledgment of indebtedness by payments, all of which were within ten years after the note was payable, will take the case so far from the operation of the R. S., c. 146, § 11, that an action will not be barred within twenty years from the time of the last acknowledgment.

The case of Warren Academy v. Starrett, is relied upon by both parties; but it seems to have little to do With the question at issue. The original note in that case, purported to be witnessed, and to have had upon it indorsements of payments. The signature of the note was denied to be that of the defendant; but the written renewal of the note being witnessed and proved, the Court ruled, that the renewal might be regarded as an independent note; and being witnessed, was within the exception of the statute. It was of no consequence, whether the original note was witnessed or not, after the proof of the new witnessed note for the sum due on the original. This case is similar to the case of Commonwealth Insurance Company v. Whitney, 1 Met. 21, where the memorandum upon the note was decided to be a note of itself. But the case of Gray v. Bowden, 28 Pick. 282, was more like the one at bar. There it was held that the memorandum upon the note in suit, was not a note in writing promising to pay money, nor a promissory note. Here the promise is implied by the payments made and indorsed, and not constituting a new note.

The last acknowledgment, that the balance was unpaid, =as shown by the indorsement, was about nine years after the maturity of the note, and about thirteen years before the commencement of this action.

The note would not have been barred by the statute of limitations, if there had been no acknowledgment of its being unpaid, until the lapse of the full term of twenty years from the time when it became payable. And the payments could not abridge the time, within which the action would not be barred. These payments, if restricted in their effect, as the defendants contend, would be substantially a new promise, which would be barred long before the statute would be a defence to a suit on the original note, and would be entirely ineffectual upon the question involved. The case therefore is somewhat different in this respect from one, where the new promise, express or implied by payments, was made after, or at the time the statute attached. And it follows, upon the principle contended for in defence, that in order to prevail against the statute at any time after the expiration of six years from the time of the last acknowledgment, and before that of twenty years, from the maturity of the note, the action must necessarily be founded upon the original promise.

Payments made upon a note not witnessed, and before the statute of limitations would prevent a recovery thereon, are regarded an acknowledgment that the balance is due. It is a valid agreement on the part of the maker, that the note for that balance is to be treated, as if the sum due became payable at that time, and that an action therefor could be maintained, if commenced within six years. Whatever was the effect of the note, when it first reached maturity, it is thereby agreed shall be its effect at the time of the acknowledgment. A different principle is not to be applied to a note attested by a subscribing witness. The admission, that it is outstanding, is an acknowledgment, that it is outstanding as it is, and not as it would be without the attestation. In both cases the promise implied is, that the balance shall be paid upon such a note as that to which the promise attaches, and the law determines what length of time, the holder may have in which to enforce payment, according to the character of the note, the existence of which is recognized by the acknowledgment.

The argument of the defendants’ counsel is exceedingly ingenious, and sets forth 'in a strong light the evils to be apprehended from allowing written contracts actually barred by the statute or about becoming so, to be renewed by evidence so frail as the recollection of witnesses. The Legislature, which revised the statutes of the State in 1840, was impressed by a similar opinion, and made provisions accordingly, to take effect thereafter. That department of the government legislated for the future, as they had the power to; but another department of the same government cannot legislate for the past.

The case of Estes v. Blake, 30 Maine, 164, was not made without full consideration; and no authority has been cited by counsel or found by the Court which conflicts with the doctrine therein expressed. Howe v. Saunders, not yet reported. Defendants defaulted.

Shepley, C. J., and Howard, Rice and Appleton, J. J.y concurred.