31 Ga. 607 | Ga. | 1860
By the Court. —
delivering the opinion.
The main issue between the parties in this case is: Whether .the cause of action of defendants in error was barred by the statute of limitations at the commencement of the suit? and that depends, for the present, at least, upon the question, whether the credit endorsed on the note sued upon, of the date of ist March, 1846, of one hundred dollars, is such an acknowledgment of the existence of the debt, at that time, as from which a valid promise to pay the debt, either expressly or by implication, may be presumed, so as to> constitute a new point, from which the statute should then begin to run anew ?
It is claimed by the plaintiff that it is not, for two reasons :
ist. That no such payment was in fact made at that time.
2d. That if the payment was actually made, that it was made on Sunday — the first day of March, .1846, being the Sabbath day — and that no binding promise to pay the debt, either expressly or by implication, could be raised from a
The first question is one of fact, and, therefore, more appropriately for the consideration of a jury; and as there is a conflict of evidence on the point, we deem it best not to express our opinion on it, especially as we shall send the case back on another point, when the same question will, or may, be submitted to another jury.
As to the second question on that point, the plaintiff in error requested the Court below to charge the jury, that “if they believed the payment on the note, endorsed as having been made on the first March, 1846, was made on that day, and it was the Sabbath day, it could not raise a binding promise to pay the debt, so as to take it out of the statute of limitations.” This charge the Court refused to give, and this refusal forms the main ground of complaint to the rulings of the Court in this case.
The legal effect of a partial payment on an existing debt by a debtor is, not only to reduce the amount of the debt to that extent, but from that act the law implies an acknowledgment that the whole debt is due and owing, and from this acknowledgment a promise of payment is presumed, that is binding on him who makes the payment, as well as all others standing in the same relation to the debt as himself. It is upon this principle or presumption, and none other, that a valid partial payment constitutes a new point from which the statute of limitations must run, instead of from the time when the debt first became due. And it is now too firmly established by judicial precedent to be shaken or overturned, although it has been gravely doubted by the most eminent judges and lawyers as an innovation by the Courts on the statute of limitations. But do these legal consequences or presumptions flow from a partial payment made on the Sabr bath day? Whether they do or not, depends entirely upon the question, whether the act so done on. that day is prohibited by law? for if the act — that is, the payment on that day —was in violation of, or prohibited by, law, then all contracts, obligations and promises, either express or implied, growing out of, or dependent on, the act, is null and void, whether so declared to be by the law of which the act was
“No tradesman, artificer, - workman, laborer or other person whatever shall do or exercise any worldly labor, business or work of their ordinary callings on the Lord’s day, or any part thereof; (works of necessity or charity only excepted) ; and that every person being of the age of fifteen years and upwards, offending in the premises, shall, for every such of-fence, forfeit the sum of ten shillings.”
Nickelson, the defendant’s intestate, to whom the payment was made, and to whom the note belonged, was at the time a merchant in the town of Greenesboro’, and the payment was made to him by Willey, on the 1st March, 1846, at the desk of Nickelson, in his store; and the further proof is, that that day was the Sabbath day. The cash-book of Nickelson, that was in evidence, shows that he was daily (Sundays
The Statute of 29 Car. II, chap. 7, §6, enacts that “no person whatsoever shall do, or exercise, any worldly labor,' business or work of their ordinary callings upon the Lord’s day.” Under that statute, the British Courts have uniformly held, that all contracts or obligations made on that day, or which grew out of, and depended upon, acts done upon that day, in violation of the statute, were void, and could not be enforced. There has been some difference, at different times, and by different Judges, as to what acts done on that day were within the prohibition; 'for instance, it was held in some of the cases, perhaps the majority, that unless the act done, out of which the contract grew, was of the ordinary calling of the party to be affected by the act, that the contract was not void. In others, again, it was held that all contracts based upon acts done on the Sabbath day, of a worldly business, were void (unless of charity or necessity), whether of the ordinary callings of the parties or not. See Drury vs. Defontaine, 1 Taunt. 135; Tennell vs. Ridler, 11 Eng. C. L. 261; Smith vs. Sparrow, 12 Eng. C. L. 253; 52 Eng. C. L. 479. It is altogether unnecessary to inquire which class of these decisions is the better construction of the statute, as either of them is equally fatal to the defendants in error. Similar statutes to that of 29 Car. II, ch. 7, §6, and of ours of 4th March, 1762, to enforce an observance of the Sabbath, have been passed by many of our sister States, and in all of them, I believe, when the question has been made, the Courts have held contracts made on that day to be void, whenever the acts done on which the contract .depended
But it is insisted that this was not a contract — not an obligation to pay money, growing out of any agreement then made to do so, or of a thing done in violation of the Sabbath day, but that it was a mere admission that the debt was then, due; that it had not been paid, and that it was as competent to make such admission on that day as any other, and that when so made, it was as competent and legal' to use such admission against the parties, as evidence of the existence of the debt at that time, as though it had occurred at any other time, and that to hold otherwise, is to hold that a party could not tell the truth on Sunday.
If it was true that the defendants only proposed to use the credit as evidence of an admission that the debt was then due and had not been paid, but was an existing debt, there could be no serious objection to it for that purpose; but that is not the use proposed to be made of this credit, but a much more important and extended one; and that is, as an acknowledgment of that character from which, in the eye of the law, a promise to pay the balance of the debt is presumed. As proof of the existence of the debt at the date of the credit, it was valueless; for it was a debt without the credit. It had not been paid, or barred by the statute, and so it could have been made to appear, whether a payment was made or not. The argument of counsel rests on the idea that anything that negatives the idea of payment, excludes the operation of the statute from the time the debt is proved to be in existence. Such an idea is altogether fallacious, for, if allowed, it would wholly defeat the statute. This argument is in accordance with what the Courts at one time held, that an acknowledgment defeated the statute by repelling the presumption of payment. Upon this construction it was held that an admission would prevent the bar, although it was coupled with a refusal to pay and a distinct avowal to claim the benefit of
Counsel for the defendant in error refers to Sanders vs. Johnson, 29 Ga. 528, as an adjudication of the question involved in this case. We do> not think so. The decision in that case was put upon the ground expressly, that the case was not within the provisions of the Act of the 4th March, 1762. This we hold to be within the letter and spirit of that Act.
The charge requested ought to have been given. If the credit was made on Sunday — and it is. not denied but that it was — ¡it can not serve to prevent the statutory bar from attaching to the debt.
Plaintiff in error also^ excepted to the charge of the Court as given — “that it was not necessary for the promises to pay the debt to be in writing, and that the statute of limitations of 1856 did not apply to this case.” But this point was withdrawn by counsel for plaintiff in error, in the argument.
JUDGMENT.
Therefore, it is considered and adjudged 'by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in refusing, upon the request of counsel for defendant, to charge the jury that if they believed the payment on the note endorsed as having been made on the 1st March, 1846, was made on that day, and it was the Sabbath day, it could not raise a binding promise to pay the debt so as to take it out of the statute of limitations.