Buckingham v. Smith

23 Conn. 453 | Conn. | 1855

Storrs, J.

The principle, on which the defendant relies fora new trial, is a well settled and familiar one; that an absolute acknowledgment of a debt as subsisting, is sufficient to raise an implication of a promise to pay it, so as to take the case out of the statute of limitations. But the very statement of this principle, implies that the acknowledgment must be shown to relate to the particular debt in question. The burden of proving the requisite acknowledgment rested on the plaintiff’, in this case, and the real question on the trial was, whether such an acknowledgment was shown by the declarations claimed to have been made by the defendant’s intestate. Those declarations purported to refer to no particular claim or debt, but amounted only to an acknowledgment that a balance would be due, from the intestate to the plaintiff’, upon a settlement or adjustment of several claims which the plaintiff held against him ; and it was also shown by the plaintiff himself, that when those declarations were made, he held several claims, or evidences of debt, against the intestate. If those declarations had purported to refer to the claim in question in this suit, or to refer to one claim only, and there had been no evidence to shew that there were others to which they could have referred, they would clearly have constituted sufficient evidence of a new promise to pay the debt in question, so as to support the replication. But as they were acknowledgments only of a balance due on the aggregate of several claims, we are of opinion that they did not prove that there was any thing due on any one of them in particular, and therefore that they were not a sufficient acknowledgment of the note declared on. If the declarations of the intestate, claimed to be proved in this case, amounted to an acknowledgment that the note in question was due, they would also amount to a similar acknowledgment as to each of the claims held against him by the plaintiff, and would enable the latter to recover all of them. This would manifestly be a perversion of the import of those declarations. In this view we are strongly inclined to the opinion, that the judge below should have excluded those declarations as inadmissible for the purpose for which they were offered, and that the course he took was over favorable to the plaintiff. .But if they were inadmissible for that purpose, the most that the plaintiff could require was that the question should be submitted to the jury, whether they related to the note in question in the case; which was the course taken, and of which the plaintiff can not justly complain. See Frost v. Bengough, 1 Bing., 266. Beale v. Nind, 4 B. & A., 571. Lloyd v. Maund, 2 T. R., 762.

The plaintiff has not pursued his exception to the exclusion of the evidence offered by him on the trial, and we see no ground on which that evidence was relevant. We therefore do not advise a new trial.

In this opinion the other judges concurred, except Hinman, J., who was disqualified.

A new trial not granted.