Patch v. King , 29 Me. 448 ( 1849 )

Reasons for not concurring by

Shepley, C. J.

It appears to me, that this opinion does not fully meet and decide the most doubtful and delicate point in the case, viz : whether the acknowledgment of one of two joint debtors, that a debt is unpaid, is sufficient to explain a written receipt of payment in full of the debt, made by the creditor, and rebut that evidence of payment with respect to the other debtor.

It has, as the opinion states, been decided, that the acknowledgment of one joint debtor, that the debt is due, will rebut the presumption of law, arising from the lapse of time and take the case as to both out of the statute of limitations.

But that seems to me to differ from the case of the introduction by a defendant of prima facie proof of actual payment, arising out of a written acknowledgment of the party, that the debt has been paid.

Suppose the defendant, King, had introduced a receipt of the plaintiff, stating that he had received payment in full of the note of King, could such proof be rebutted as to King, by the introduction of a written acknowledgment signed by Brown, that the debt had not been paid? This probably would not be contended, for one person could not destroy or explain the effect of a written discharge given to another.

In this case the written acknowledgment of the creditqr states, that he has received payment of “ Jacob D. Brown and Samuel H. King, the full and just sum to secure the payment of which the within mortgage was executed.” The written acknowledgment is, that payment has been received of both ; is it full proof that it has' not been received, that one admits that the debt is not paid but due ?

I am not aware, that the acknowledgment of one of two joint debtors, has ever been decided to affect the rights of the other, further than to rebut a presumption of law. And that effect has been considered as so far undesirable or unjust, that the Revised Statutes have destroyed it.

If the rule be now established, that the acknowledgment of one will rebut prima facie evidence of payment arising from a written statement of the creditor, that his debt has been paid not only as it respects himself, but as it respects the other, that rule will continue to be good in a case occurring since the Revised Statutes, for they will not opeiate upon such a case or rule. And the result will be in a case like the present, happening since the Revised Statutes were in force, that payment by one of two joint debtors, will not rebut the presumption of law, as to the other, but will rebut prima facie proof of payment arising from a receipt in full, not only as respects himself, but as it respects the other. It seems to me, that such a condition of the law, would be somewhat revolting to one’s common sense. It appears to me, that this point has not been considered in the opinion, and that it deserves and must have a sober consideration and decision, and I do not concur because it has not received it.