Van Dike v. Administrators of Van Dike , 15 N.J.L. 289 ( 1836 )

Hornblower, C. J.

This was an action of debt on a bond brought by the defendants in error against the plaintiff in error. The bond was given on the 1st of May 1797, payable in one year after date. This action was commenced in the year 1827 ; being thirty years after the bond was given, and twenty-nine years after it became due. The defendant pleaded 1st, non est factum ; and 2dly, that the cause of action did not accrue any time within sixteen years before the commencement of the suit. To this second plea, the plaintiffs replied generally, that the cause of action did accrue within sixteen years before action brought. On the trial of the cause, the execution of the bond having been sufficiently proved, the plaintiffs read the same in evidence to the jury ; and also offered to read to them certain indorsements on the bond, purporting to be receipts or memorandums of money paid thereon; one of which was dated the 17th August 1811, and the other on the 4th May 1814.

To the reading of these endorsements, the defendant objected, but the court overruled the objection, and they were read in evidence.

The question principally discussed on the argument of this cause, was, whether it was competent for the plaintiffs to read these endorsements, as proof of payments made on the bond, without showing that they had been made by, or with the consent of the obligor. But the view I have taken of the case,renders it unnecessary to examine that point.

By the 6th Section of the statute, Rev. Laws, 411, it is enacted that every action of debt, on a bond for the payment of money ■only, shall be commenced, and sued within sixteen years, next •after the cause of such action shall have accrued, and not after; ■but, if any payment shall have been made, within or after the ¡said period of sixteen years, then an action instituted on such ¡bond, within sixteen years after such payment, shall be good and effectual in law and not after.

This bond was dated the 1st May 1797, payable in One year thereafter. The cause of action therefore accrued on the 1st or 2d of May 1798. The first payment indorsed on the bond, was on the 17th of August 1811, which was within the sixteen years, the second was on the 4th of May 1814, which was two or three days after the expiration of the sixteen years. This action was commenced in 1827, which was more than sixteen years after the first indorsement, but within sixteen years after the last endorsement. So, that if this action can be maintained, it must be, because the defendant made the payment mentioned in the second indorsement.

Whether that payment could be given in evidence upon the trial of the issue joined in this case, so as to avoid the bar, is the question.

While the defence rested on presumption at the common law, it was competent for the plaintiffs to overthrow it by the admissions of the party; by partial payments,' or any other circumstances, inconsistent with such presumption, or destruction of the ground upon which it was erected. But the statute ■ has entirely abolished the doctrine of presumption, and made time a positive and effectual bar. It was so decided by this court in the case of Marston v. Seabury, Penn.R. 702, Harr, ed. 516. The action must now be brought, either, within sixteen years, after it accrued, or within sixteen years after the last payment made on the bond. If therefore a defendant pleads in bar, that the action was not commenced within sixteen years after the cause of action accrued, and the plaintiff takes issue upon that plea, he must show a bond, which became due and payable within sixteen years previous to the commencement of the action. Such an issue will not be supported by producing a bond of thirty or forty years standing, and then proving a payment within the last sixteen years — making a payment, on .a bond, does not create a right of action; it only saves or continues, by force of the statute, a pre-existing cause of action. It takes away the bar, and gives the obligee sixteen years more, within which to prosecute his original cause of .action. The plaintiffs ought therefore to have replied specially, ■showing a payment, and that the action had been commenced within sixteen years thereafter. Such replication would have afforded the defendant an opportunity to take issue upon the fact of payment; a fact which lies at the foundation of the plaintiffs’ right of action ; which the statute has made material, .and therefore traversable, and without proof of which, the plaintiffs cannot recover.

I am aware, that this view of the subject, may, at first sight appear to conflict, with the doctrine, applicable to pleas of the statute of limitations, in actions of assumpsit. But upon a little reflection, it will be perceived to be in perfect accordance with it. It is true, if a defendant, in assumpsit, pleads, nonrassump,sit, or, actio nonacerevit infra sex annos; and issue be thereupon joined, the plaintiff supports the issue on his part (according to the old cases) by simply proving an acknowledgment of the debt, or a partial payment of it, within six years before action brought. But why ? not because such acknowledgment or payment avoided the bar; but because they amounted by implication of law, to a new promise, creating and giving rise to a new cause of action; so that, the issue is strictly maintained, and the action is thereby shown to have been brought within six years from the time it accrued; that is, from the time the constructive or implied promise was made. The •doctrine upon this subject is fully and distinctly stated in the case of Marston v. Seabury, before cited. And in that case, and subsequently, in the case of Ludlow v. Decamp, 2 Halst. R. 113, this court solemnly decided, that a bond, barred by the .statute of limitations could not be revived, even by an actual and ■express promise of payment. In the latter case too, the court took occasion to show, that in assumpsit, the bar, is not avoided, by mere acknowledgment that the debt once existed, or is now due. but that the action is revived by the new promise, implied from such acknowledgment. But no such implication can arise in the case of a bond.

In actions on bonds, before the statute, evidence of acknowledgments, or partial payments made within the twenty years, was admitted, not to give the plaintiff a new cause of action, or to revive the old one ; but only to repel a presumption. The object, of proving payment now, under the statute, is very different: it is to bring the' plaintiff within a saving in the statute, and to establish his right to sue upon the bond, notwith-. standing the cause of action upon it, accrued more than sixteen years before the action brought. Like all other savings in the statute of limitations, it must be specially replied to a plea that invokes the protection of that statute. My opinion therefore is, that the court erred, in admitting the plaintiffs to prove payments, in any way, under the issue joined in this case. Such evidence was a surprise upon the defendant; and not within the issue. Nor can the plaintiffs derive any benefit from the evidence given on the trial, of the defendant’s admissions that he had given such a bond, and made payments upon it. Such admissions, even if accompanied, with an actual promise of payment, it has been decided by this court in the cases of Marston v. Seabury, and Ludlow v. Van Camp, above cited, would not revive a bond once barred by the statute of limitations. ,

For these reasons I am of opinion the judgment must be reversed. But at the same time I am fully prepared to concur in the opinions which will be expressed by my associates on the other point, namely, that under no state of pleadings could such endorsements be read in evidence without proof that they had been made by, or with the consent of the obligor, or actual proof that such payments had been made.

Ford, J. An action of debt, on an obligation for the payment of money only, must be commenced within sixteen years after the cause of action shall have accrued on such bond, and not after, according to the provisions of our statute ; but if any payment shall have been made on the bond, within or after the sixteen years, then an action within sixteen years after such payment, shall be good. Rev. Laws, 411, see. 6.

If the holder’s endorsement of a dollar or a cent received on an old bond, and his dating such endorsement within sixteen years, be evidence of a payment by the debtor, without any other proof thereof, the statute will afford no defence whatever against an old bond, and may just as well be repealed ; for- what creditor would not endorse a cent or two on a bond, to revive it after it had become barred by the statute; or in order to extend it for sixteen years longer when nearly expiring? All the debtor’s security would be placed at the will and pleasure of the holder of the bond, under such a decision. An endorsement made by the holder in his own favor, not even under his own oath of the truth of it, or the oath of any other person, cannot be evidence on any principle that is known in law. In 2 Campl. N. P. 231, the court said, it saw no principle on which such evidence could be received. In 17 Johns. 182, the court said, a man’s act should be no evidence for him; it was repugnant to every sound principle of law. Ellenboeough, C. J.said in Rose v. Bryant, 2 Campl. 321, “ you must prove that the endorsements were on the instrument, at or recently after the times they bear date, before you are entitled to read them in evidence.” The admission of them without any fresh evidence in this case, was therefore manifestly erroneous.

But if such evidence would have been receivable to rebut a presumption at the common law, our statute does not place the revival of the bond on any presumption, it requires proof of the fact of payment by the debtor; and I am not prepared to say that any writing made by the holder in his own favor, though proved to be made at the time it bears date, would be evidence of the important fact he is bound to make out by the statute. The question, however, does not 'come up in this case and I do not mean to prejudge it. Judgment must be reversed.

Ryeeson, J. The action below was in a plea of debt. One count in the plaintiffs declaration, was on a bond dated in 1798, and payable some short time thereafter. The stiit was commenced in 1827. The defendant among other things, plead that the cause of action did not accrue within sixteen years next before suit brought. The plaintiffs replied that it did. The parties agreed to waive all technical questions arising out of the pleadings, and the conformity of the proof thereto; and try the fact, whether the plaintiffs had any subsisting cause of action,, when the suit was brought.

On the trial, the bond was produced and proved, and read in evidence. Several endorsements of payments had been made thereon. Some of these were also read without objection. But when the plaintiffs proposed to read an indorsement of a payment, purporting to have been made in 1811 — and another in 1814, without other evidence-respecting the same, than their existence on the bond, the defendant objected. The court overruled the objection, and allowed the same to be read. To this opinion of the court below, a bill of exceptions was tendered and sealed.

This bill of exceptions presents the question, whether, such indorsement, simply and alone, without other evidence, direct or indirect, when, or by whom made; whether before or after the bar had arisen from lapse of time; or whether made with or without the privity of the obligor, can be received as evidence to prove a payment within sixteen years, and thus give the plaintiffs the benefit of the saving clause in our statute of limitation ?

The general principles of our law are against, it. No man shall be allowed to make evidence for himself. And the admission of these indorsements would certainly be contrary to the opinion of the elementary writers whom I have consulted. Phil. Ev. 114, 1 Starhie, Ev. 311. The reported case which I have found, going the greatest length in support of the evidence in question, is Searle, Executor of Searle v. Ld. Barrington, Administrator, &c. Of this case there are several reports in print — of which, I have examined particularly the two most likely to be accurate; one to be found in 2d Strange, 826, the other in 2d Ld. Ray. 1370. The result of the inspection of the two reports, is that the indorsement was under the hand of the obligee, who had been dead at least five years before the common law presumption of payment commenced. Of course the indorsement had an existence, in a commanding position, as evidence against the obligee, at a time when it was not his interest to feign a payment, and every presumption must have been that it was made with the privity of the obligor. The facts of the case, therefore, will not warrant the doctrine sometimes attempted to be extracted from it, at least as those facts are presented by Strange, and in which so far as material, he is not contradicted by Lord Raymond. Some of the dicta reported to us as having fallen from the court in that case, go beyond the case itself, but have been extensively and I believe generally questioned and disapproved of since by Judges and annotators. I feel fully warranted, therefore, in saying that the Supreme Court of New York, in Roseboom v. Billington, 17 John R. 182, have gone at least as far as the law will warrant, in their resolution: that in the absence of proof of the privity of the obligor to the indorsement, such indorsement must be shown to have had an actual existence, before it was the interest of the holder of the instrument, to make it. No such proof was made in the case now before us, and in my opinion, it was not lawful to read the receipts in evidence. The judgment of the court below is therefore erroneous, and must be reversed.

Judgment reversed.

Same case, 2 Harr. 478; Cited in Disborough v. Bidleman’s Heirs, Spencer, 277.