Sands v. Gelston , 15 Johns. 511 ( 1818 )

Spencer, J.

delivered the opinion of the court. Being of the opinion that the plaintiff has failed in maintaining the issue, that the defendant has assumed and promised to pay any part of the demand, within six years, it is unnecessary to consider, whether the plaintiff once had a legal demand or not. To take this case out of the statute, the plaintiff relies on the defendant’s letters, written in answer to letters from him, and on the admissions made to Mr. Stevens. The defendant admits the receipt of the collector’s portion of the forfeitures arising from the condemnation and sale of the Two Friends and the Huron, vessels seized and libelled before the plaintiff was superseded in his office.- The proof is very satisfactory,' that the defendant received the commissions on bonds taken by the plaintiff whilst in office ; but the defendant constantly asserted a right to retain what lie had received, on his construction of the law. Stevens’ evidence proves the defendant’s admission of the receipt of the moneys claimed, and that the same had not been paid over to the plaintiff; and that the defendant said, that if the plaintiffs had a claim in law or equity for the forfeitures, or commissions, he would submit it to a reference, or he would compromise the business; and that, in his oph nion, the plaintiff had no claim in law or equity for the commissions or forfeitures ; and that if he had, he, the defendant, would not have left the business so long unsettled. That the plaintiff had frequently written and spoken to him on the subject, but he considered that he was not entitled to the forfeiture, or the commissions 5 but if the witness would convince him, that the plaintiff was entitled, in law or equity, to the forfeitures or commissions, he would submit it.

This is thesubstance and amount of the confessions relied on, to take the case out of the operation of the statute of limitations. Courts of law seem to have been convinced, that the construction which has, sometimes, been adopted, to get rid of the operation of the statute, has been carried too'far; and hence, a disposition has been evinced to put a reasonable interpretation upon the language of the party ; an interpretation that shall be consonant to the meaning and intention of the speaker

The statute of limitations is the law of the land, and, as has been frequently observed, was intended as a shield against stale and dormant demands, under the benign suppo-

sition, that the party may have lost the evidence necessary to his defence, by the lapse of time. I never could see the difference, as regards the revival of a debt, between one barred by the statute of limitations, and one from which the debtor had been discharged under the bankrupt or insolvent laws.

The remedy is equally gone in both cases. The statute of limitations requires all actions on contract to be commenced within six years next after the cause of such action accrued, and not after. The remedy being, suspended after six years, there yet exists a moral duty, on the part of the debtor, to pay the debt; and, accordingly,-a promise to pay a debt not extinguished, but as to which the remedy is lost, is a valid promise, and may be enforced on the ground of the pre-existing moral duty. There is, then, no substantial difference between a.debt barred by the statute of limitations, and a debt from the payment of which the debtor is exonerated by a discharge under a bankrupt or insolvent act. Both of them rest on the same principle with a debt contracted by an infant not for necessaries; yet, it is singular, that in neither of the latter cases will the bare acknowledgment, that the debt once existed, and has not been paid-, support an action ; an express promise to pay being necessary.

I mention this merely to show, that in the single case of a debt barred by the statute- of limitations, courts of law have given a construction which would apply, with equal propriety, to the other cases, and yet have restricted the rule to the one case, as though the statute of limitations waian Odious statute, and to. he gotten rid of by construction. ■

I am bound by authority to consider the aoknowledgment of the existence of a debt within six years before the suit was brought, as evidence of a promise to pay the debt. But I insist, that if, at the time of the acknowledgment of the existence of the debt, such acknowledgment is qualified in a way to repel the presumption of a promise to pay, then it will not be evidence of a promise sufficient to revive the debt, and take it out of the statute. In consonance with this distinction, I take it, the cases of Danforth v. Culver, (11 Johns. Rep. 146.) and Lawrence v. Hopkins, (13 Johns. Rep. 288.) were decided in this court. In the first case, we held, that although the defendant acknowledged the execution of the notes, but insisting that they were outlawed, and that he meant to avail himself of the statute, no new promise could be inferred without violating the truth of the case. In the other case, the defendant was sued as one of the makers of a joint and several promissory note ; the statute of limitations was pleaded, and it appeared in evidence, that the defendant stated he had lately been sued on a contract made with Whiting, (the payer of the note,) and that by the terms of the contract he had never considered himself holden to pay any thing, and that his counsel advised him that the contract could not be enforced at law. We held the evidence insufficient to take the case out of the statute ; that there was neither an express, nor an implied promise to pay the debt; on the contrary, that the defendant uniformly considered the demand as unjust from the beginning, and that he was under no obligation to pay it. That to infer a promise to pay, in direct opposition to the defendant’s denial of the justice and fairness of the debt, would be trifling with the statute.

We, certainly, did not mean to overrule these cases in Mosher v. Hubbard. (13 Johns. Rep. 512.) The facts in that case were sufficient to be submitted to a jury, and for them to presume, that the defendant not only admitted that the debt was not paid, but. that he recognized its existence, as a debt due from him within six years. In the case of Johnson v. Beardslee^* and others, we recognize the law to be, that the acknowledgment of a debt is evidence sufficient for a jury to presume a new promise; and we add, that we did not intimate, in Danforth v. Culver, that an acknowledgment of (he debt would not have been sufficient, unaccompanied with a protestation against paying it.

To comeback to this case ; the whole amount of the defendant’s admission is this, that the plaintiff had never received what he claimed as a debt; and that, if the defendant believed he had a claim in law, or equity, he would submit the matter to reference, or compromise it; but that, in , his opinion, the plaintiff had no such claim; and that he was not entitled to it in law or equity, and, therefore, he ■would neither submit, nor compromise it.

It wÓuld be doing violence to this admission, to say, that there is evidence from which a promise may be inferred, to pay a demand, the justice and equity of which, as well as the defendant’s liability to pay it, is utterly denied.

I will briefly review some decisions, which appear to me to place this question in a very clear light. I am not called upon to reconcile all the cases upon this subject. My object is, as far as is possible, to rescue the statute from constructions which go to overthrow it, and to endeavour to place this subject upon rational grounds.

In the case of Clementson v. Williams, (8 Crunch, 72.) Ch. J. Marshall says, “ decisions on the statute of limitations had gone full as far as they ought, and the court was not inclined to extend them in this case he says, “ there is no promise, conditional or unconditional, but a simple acknowledgment “ the statute,” he adds, “ was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost; it is not then sufficient to take the case out of the act, that the claim should be proved, or acknowledged to have been originally just; the acknowledgment must go to the fact that it is still d.ue.”

In Brown v. Campbell, (1 Sergeant and Rawle, 179.) Ch. J. Tilghman says, “ But I can never agree that a letter which denies that the defendant ever was liable to the plaintiff’s demand, will avoid the act of limitations, merely he cause it is not denied that payment has not been made.” In Rowcroft v. Lomas, (4 Maule and Selwyn, 457.) the action was for money lent, and the statute was pleaded ;

the plaintiff gave in evidence the defendant’s accountable receipt, for 80 pounds, to account for on demand, and proved, that in 1814 the receipt was shown to the defendant, and he was asked if he knew any thing of it, he said he knew ' all about it, that it was not worth a penny, and he would never pay it. He admitted his signature, and that he never had paid it, and said he never would, and added, besides,' it is out of date, and no law should make him pay it. Lord Ellenborough held, that the effect of the receipt was destroyed by the lapse of six years; that something more must be proved than the bare acknowledgment by the defendant that the thing is unsatisfied, to give effect to that which is, perse, destroyed. He adds, “ the cases, indeed,have determined that a debt, the existence of which is extinct, through lapse of time, may be revived by an acknowledgment that it is unsatisfied ; but there must first be some acknowledgment that it ever existed.”

It is not correct reásoning to contend, that if the defendant admits that the demand made upon him has never been satisfied, that therefore he has revived the debt, and waived the protection of the statute, when, in the same breath, he insists, that the demand is illegal and inequitable. Though, indeed, the defendant may admit, that what the plaintiff claims as a debt has never been paid, if he protests against his liability, it would be an outrage on common sense to infer a promise to pay, in the face of his denial of his liability to pay. On these principles, I rest my opinion, that the defendant is entitled to judgment; and such is the opinion of the court.

Judgment for the defendant, ^(a)

* Ante, p. 4.

(a) In an action against the drawer of a foreign bill of exchange, the evidence to take the case out of the statute was, that the defendant said, “ if you had presented the protest the same as the rest, it would have been paid; I had their funds inithe acceptor’s hands.” Lord Ellenborough was of opinion, that as this was a qualified ■admission, in which the def-ndant resisted payment, on an objection which would have exempted him from payment, the law would not, under the circumstances, imply a new promise, De La Torre v. Barclay and Salkeld, Starkie, N. P. Rep. 7.)