15 Wend. 284 | N.Y. Sup. Ct. | 1836
By the Court,
The only point excepted to before the referees, was their decision that the evidence was sufficient to take the case out of the statute of limitations; and this was the only point decided by the court of common pleas, as appears by the record, and also by the written opinion of the first judge of that court. Of course no question of evidence can be raised here which was not raised and decided' in the court below.
It has often been remarked that the decisions of courts upon the kind of promise necessary to revive a.debt barred by the statute of limitations have been contradictory. I think it will be found, however, that among the numerous decisions of this court, there is none which sustains the decision made in the court below.
The statute which declares that all actions upon contract without specialty, &c.shall be commenced and sued within six years next after the cause of action accrued and not after, has sometimes been considered as affecting the cause of action, and sometimes as affecting the remedy only ; and hence it has been argued that if the debt itself is barred and destroyed, the moral obligation remaining to pay it, is merely the consid-* eration for a new promise ; that the new promise is the cause of action, and not the old debt; and that therefore the new
The earliest case which it is necessary to advert to is Sluby v. Champlin, 4 Johns. R. 461. The defendant in that case, when arrested, expressed his surprise that the debt had not been paid by his partner, and promised to meet the plaintiff for the purpose of settling the accounts, if the plaintiff would give time for the payment. Tates, justice, says, if a party acknowledges a debt to be unpaid, it is such a waiver of the protection of the statute as to repel the presumption of payment, being a recognition of the former liability. The judge, however, subsequently remarks, that the defendant had said that the debt ought to be paid, and mentioned 18 months as the time he wanted for payment. “ This,” he added, “ is a promise sufficient to make him liable.” In Bush v. Barnard, 8 Johns. R. 408, the defendant offered to pay in specific articles. The court said the promise was conditional, and the plaintiff was bound to show that he was ready and had offered to accept the specific articles. In Dean v. Pitts, 10 Johns. R. 35, the defendant admitted the notes upon which the suit was brought, but said they had been paid; that he had sent the money to R. and he supposed R. had paid the plaintiff; that if R. had not paid the notes, he, the defendant, would, and that he would not plead the statute. The court said that the defendant admitted the debt, and did not pretend that he had paid it, but supposed his partner had, and assumed the burden of proving such payment. This case comes the nearest to the case now before us of any in our reports, and it will be seen that there is a material difference. In the present case the defendant said the note was overpaid; he agreed to submit it to men if the plaintiff would give security for the costs. It does
Whatever therefore may be the true philosophy of the rule, and learned judges have differed on that subject, yet since the case of Sands v. Gelston there has been no dispute as to what, the rule in fact is, to wit: that to revive a debt barred by the statute of limitations, whether the statute theoretically operates upon the debt itself or upon the remedy only, there must be an express promise, or an acknowledgment of a present indebtedness ; a subsisting liability and a willingness to pay it. If the defendant denies its justice, or claims the protection of the statute, no action lies. If we test the testimony in this case by the above rule, it will be found that the action was not sustained. The principal witness concludes his testimony by saying that in all the conversations which he ever had with the defendant, he invariably insisted that he did not owe the plaintiff, but she owed him. This is very far from admitting an existing demand against him which he is willing to pay.
The counsel for the defendants in error insists that the plain tiff in error is estopped by his stipulation from availing himself of the statute of limitations. That point cannot now arise. The plaintiffs did not raise any question on that subject in the court below; it is therefore not now before us upon this writ of error. In the case of The Utica Insurance Co. v.
Judgment reversed.