11 Johns. 146 | N.Y. Sup. Ct. | 1814
The evidence to take this casé out of the statpte is, that the defendant, when the notes were shown to him, « admitted that he exeeuted them, but observed that they were outlawed, and that he meant to avail himself of the statute of limitations.” Even if we were to admit the authority of all the adjudged cases oil the point, in the English courts, we should not think this to be such ah acknowledgment of the debt as would authorize the jury to presume a new promise. It was for a long time held, in England, that an acknowledgment of a debt, without a promise to pay, was not enough to deprive the defendant of the benefit of the statute.
In Bryan v. Horseman,
In Clarke v. Bradshaw and Coghlan, (3 Esp. N. P. Cas. 155.)
In the case of Jones v. Moore, (5 Bin. Rep. 573.) the counsel for the defendant, arguendo, observed, that “ if an acknowledgment operated by revival of the original debt, then it would answer, though accompanied by an express refusal to pay, which was contrary to the opinion of the present chief justice, in Murray v. Tilly, and of Judge Washington, in Reide v. Wilkinson." Tilghman, Ch. J. in the same case, says, “ when the defendant pleads non assumpsit infra sex amos, and the plaintiff replies assumpsit infra sex annos, how can the issue be found for the plaintiff without proof of a promise, express or implied, within six years ?” And Yeates, J. says, “ where it” (the acknowledgment of the debt) “ is accompanied by circumstances or declarations, that the party means to insist on the benefit of the statute, no promise can possibly be implied, without viola- • ting the truth of the case, and so it has been decided.”
This reasoning is founded in principle, and is perfectly satis- ■ factory. We are of opinion that the defendant is entitled to judgment.
Judgment for the defendant.
v. show. 120. Vent, 152.
S. C. 5 Mod. 425. S. C. Carth. 470. S. C. 1 Salk. 29. Bull. N. P. 148.
Cowp, 548, Peake's N. P. Cas. 93.
а) See Bicknell v. Kepple, (4 Bos. & Pull. 20. or 1 New Rep. 20.)
See Rucker v. Hannay, n. (4 East, 604.)
Peters v. Brown, 4 Esp. N. P. 46.
а) See Jackson v. Fairbank, (2 H. Bl. 340.) Whitcomb v. Whiting, (Doug, 652.) Path. Trait, des Oblig. n. 663. 665. Cod. lib, 8. tit. 40. s. 5.
b) See, also, Bosanquet, arguendo, in Bryan v. Horseman, (4 East, 600— 603.) Cowan v. Magauran, (Wall. Rep. 66.71.) Ferguson v. Taylor, (1 Hayw. Rep. 20. 239.) 2 Salk. 421, 422. 2 Wms, Saund. 64. b. n.