Bogert v. Vermilya

By the Court, Edwards, J.

The promissory note upon which this suit was brought, and which according to the notice attached to the plaintiff’s declaration, constituted the sole cause of action, was signed by the defendant and William Bruce, who jointly and severally promised to pay the sum of $200, with lawful interest, in three months after its date, which was the 21st of January, 1837. The declaration contained only the common money, counts, with a copy of the note annexed. The defendant pleaded the general issue and also actio non accrevit. &c. To this the plaintiff replied generally, and also put in a special replication that before the expiration of six years from the time when the several causes of action in the declaration mentioned accrued to the plaintiff, the defendant departed from, and resided out of this state, and that the plaintiff commenced his suit within six years after the several causes of action accrued to the plaintiff, exclusive of the absence of the defendant out of the state-To this there was a general rejoinder, and also a special rejoinder, that the several causes of action accrued on the 24th day of April, 1837, to the plaintiff against the defendant jointly with Wm. Bruce, and that at the time when the several causes of action so accrued, and from thence continually until the decease of said Bruce on the 15th of January, 1845, the said Bruce resided in the city of New-York, and that more than six years elapsed between the time when the said causes of action accrued to the plaintiff, and the death of the said Bruce. To this there was a surrejoinder that the several causes, of action accrued subsequent to the 24th of April, 1837, and that six years did not intervene between the time when the several causes of action accrued, and the death of Bruce. To this there was a general rebutter.

On the trial of the cause the plaintiff offered to prove the absence of Vermilya, and the acknowledgment of the debt by Bruce. The circuit judge decided that such proof was admissible, and to this decision the defendant’s counsel excepted. The plaintiff then introduced evidence to show the absence of Vermilya, and that Bruce had made payment on the note within six years before the commencement of the suit. The. defendant’s counsel then renewed his exceptions to the evidence, and requested the judge to charge the jury that the new promise growing out of •the payment by Bruce was not binding on the defendant. The judge refused so to charge; but instructed the jury, in substance that, if they believed a payment was made by Bruóe, as alledged by the plaintiff, such payment took the case out of the statute, as to Vermilya. And to this charge the defendant’s counsel excepted.

The judge’s charge was founded upon the rule which was laid down in the leading case of Whitcomb v. Whiting, (Doug. 652,) and which was afterwards sanctioned in this state in the case of Smith v. Ludlow, (6 John. 267,) and finally adopted in Johnson v. Beardsley, (15 John. R. 3,) and in Patterson v. Choate, (7 Wend. 441.)

But, since the trial of the cause, the law on this subject has undergone a review in the court of appeals ; and in an opinion delivered by the present chief judge of that court, it is shown by convincing and unanswerable argument, that, upon reason and principle, the rule laid down in the cases above cited was wrong, and they were distinctly overruled. (Van Kuren v. Parmelee, 2 Comst. 523.)

It will be observed by reference to the bill of exceptions, that upon the trial the plaintiff did not rely upon his replication of the absence of the defendant, in order to defeat the plea of the statute of limitations; and the question is not presented to us whether such proof would in itself take the case out of the statute. For this reason we do not consider ourselves authorized to express an opinion upon that point.

New trial granted, costs to abide the event.