5 Binn. 573 | Pa. | 1813
This action was brought on a promissory' note dated the 12th of February 1799, given by Robert Gray deceased to Bond and Brooks, payable sixty days after date, and indorsed by Bond and Brooks to William Wister deceased. Issue was joined on the statute of limitations; and on the trial several letters from the defendant Moore, were read in evidence, from which the jury, agreeably to the opinion of the judge before whom the cause was tried, inferred a promise to pay the debt. It was reserved as a point for the decision of the Court in bank, whether supposing a promise by the defendant to have been proved, it supported the plaintiffs’ declaration, which was founded on a promise to William Wister the testator. I will consider first, whether such a pro
1. The act of assembly declares, that the action shall be commenced, “ within six years next after the cause of such “ action, and not after.” If six years elapse after the cause of action accrued, there can be no recovery, although the debt is not extinguished. It remains due in conscience, and is a good consideration for a new promise. It remains in some respects due in law too, for if the defendant omits to plead the act of assembly, he is considered as having waived the benefit of it, and the plaintiff may recover against him. The letters of the defendant are said to contain an acknowledge ment of the debt, which, as the plaintiffs’ counsel contends, is sufficient per se, to take the case out of the statute, not because it is evidence of a new promise, but because it revives the debt. There is some confusion, and perhaps some inconsistency in the cases on this subject; but it appears to me from the reason of the thing, and from a review of all the cases, that an acknowledgment of the debt can only be considered as evidence of a new promise, or what is pretty much the same thing in substance, as a circumstance from which the law will imply a new promise. To consider this matter on principle. When the defendant pleads non assumpsit infra sex annos, 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 yéars? It is the very point, and the only point in issue. I cannot comprehend the meaning of reviving the old debt, in any other manner than by a new promise. But if there was a new promise in the present case, it was to the plaintiffs the executors, and not to their testator as stated in the declaration, and therefore the declaration would not be supported. Let us see next how the authorities stand. The case of Heylin v. Hastings, is reported in 1 Ld. Ray. 389. 421., 12 Mod. 223., Comyns 54., 1 Salk. 29., Carth. 471. The report in Cart hew is not so good as in the other books. It was an action of general indebitatus assumpsit, by an executor for goods sold &c. by his testator. Issue was joined on the statute of limitations; and the plaintiff recovered on proof of the debt, and evidence of a promise within six years to the executors, to pay the debt if they could prove it. Lord Holt consulted all the judges of England, and they were all but two of opinion that an acknowledgment of the debt was sufficient evidence of a
2. I will now consider the evidence, which consisted of five letters from the defendant to John Wister, one of the plaintiffs. In the first the defendant asks the plaintiffs whether he is at liberty to pay over the assets in his hands to the
The plaintiff declared in this case on a promissory note dated the 12th of February 1799, drawn by Robert Gray in his life time, payable to Bond and Brooks, and by them indorsed to William Wister in his life time. The promise to pay is stated to have been made by Gray to Wister, the former of whom died in November 1805. The defendant pleaded the act of limitations and the plaintiffs replied thereto. Upon this issue nothing can be more clear in point of fact, than that a promise made by the administrator of the intestate, to one of the executors of the testator, would not shew a promise by the intestate to the testator. And considering the matter in a legal view, letters written by the defendant’s-
But the Court are now called upon, to express their sentiments on the legal operation of the letters which were read on the trial, as it may save further litigation between the parties.
I hold the act of limitations to be a most beneficial law, and that it strongly tends to the peace and quiet of social life. The consequences of aiding stale demands, where vouchers may have been lost, and material witnesses have paid the common debt of nature, are obvious to every one. Some hard cases it is true may have occurred under the act, wherein the recovery of fair and honest debts may have been barred by7 its operation; but on the score of sound policy, it is better to submit to private inconvenience, than introduce a general mischief. My judgment is not yet prepared to go to the extent of some of the cases decided on this subject. We are told in the books that an acknowledgment of a debt is only evidence of a promise to pay it. Where it is accompanied by circumstances or declarations, that the party means to insist on the benefit of the statute, no promise to pay can possibly be implied without violating the truth of the case, and so it has been decided.
There was much truth in the observation of the defendant’s counsel, that declarations by executors or administrators respecting demands brought against them, should not be construed so strictly against them, as if made in their individual character, where they must be supposed to be conusant of their duties as well as rights. Inquiries may fairly be made by persons in their representative character, concerning the justice
In Mr. Moore's letter of the 7th of December 1807, he desires infoimation whether he is at liberty to write to the intestate’s heirs to call on him for the assets in his hands; or whether he must hold them, until this claim is satisfied. He evidently treats this claim as just, and submits to the executors whether he should retain the assets in his hands to discharge it. No evidence was given on the trial of the ground of the action brought by the executors against Bond; but it is most highly probable from the other letters which were written, that it was founded on his indorsement. So it is stated by the plaintiffs’ counsel, and if the fact be so it is capable of proof on another trial. The meaning of the first letter then, would plainly be, whether the executors would look to Bond and Brooks as indorsers, and give up their demand on the estate of the drawer. The letters written by the executors to Mr. Moore were not produced on the trial,-but they may be shown at a future day, il it should be thought that they can throw light on the true meaning of the administrator. His letter of the 26ch of July 1810, acknowledges the receipt of Mr. Wister's letter informing him of the decision of the arbitrators m Bond's business; and he therefore says, he should be in the city in a few days, and -would settle the matter in some -way. This is powerful evidence connected with the former letter in 1807, and unless they can be fully explained, they amount to such an acknowledgment of the debt, as will take the case out of the act of limitations.
I am not about to dissent from the Chief Justice; it was my way of thinking on the trial as to the result of the case. Nevertheless I will add some observations- which may perhaps in some particulars be different. It is the language of some judges on the benches of England, that if the statute of limitations was for the first time to receive a construction, nothing in the nature of an exception to take a case out of the statute would be admitted. I incline to be of a contrary way of thinking, on the principle that a
That a bare acknowledgment of the debt, without any promise to pay, may well take a case out of the statute, is laid down in the English tracts, and sactioned by elementary writers abundantly. I will refer only to 2 Sound. 64., Selwyn’s Ni. Pri. 122. A distinction was formerly taken, says Serjeant Williams, in his note, between a promise to pay and a bare acknowledgment, but no longer regarded, it being now settled that an acknowledgment of the debt takes it out of the statute. And also Selwyn 126, that howeVer it was ruled in Heylin v. Hastings, yet from the language of more modem decisions it must be inferred, that the mere finding by a jury of an acknowledgment of the debt within six years of action brought will be sufficient. But it is laid down also and sanctioned by Lord Mansfield, not to speak of later authorities, that an acknowledgment may be inferred even from equivo-' cal expressions. A letter written in ambiguous terms shall be left to the jury to say, whether it amounts, not to a promise, for that is not the language in the books to which I refer, but to an acknowledgment. The "bare saying that no demand had been made within six years, has been left to the jury as evidence of an acknowledgment, who found accordingly, and a new trial refused. It has been said that the slightest acknowledgment will take a case out of the statute, as when defendant said, “ I am ready to account, but nothing is due.” But what is more, circumstances will take a case out of the statute, from which may be inferred an acknowledgment. The idea of a new promise, which is sometimes introduced in the English decisions, does not appear to be on principle correct. The saying your demand is barred by the statute, and
But the giving leave to do one or the other of these must depend upon the evidence of an acknowledgment of the debt by the defendant. I am of opinion now as I was at the trial, that there was evidence of an acknowledgment sufficient to take the case out of the statute. This being the case, I have wished to support the pleadings; but the taking issue on the plea of non assumpsit seems to be in the way. I am constrained to say there shall be a new trial, with leave to amend; though as the defendant must see that it can answer no other end than to give delay, I would recommend the payment of the demand, according to the verdict, unless he chooses to take the sense of another jury on the fact of acknowledgment. I find a dictum upon the point in the charge of the Court, that the special matter may be pleaded. 8 Mass. Rep. 129. “ The defendant pleads what is prima facie a legal bar “ to the plaintiff’s demand. The plaintiff replies other matter “ which shews the defendant to be bound.” And 134. “ The “ sound principle which ought to govern in the construction “ of the statute (of limitations) is, that a presumption arises u that the defendant from the lapse of time has lost the evi- “ dence which would have availed him in his defence, if sea- “ sonably called upon for payment. But when this presumption is rebutted by an acknov/ledgment of the defendant “ within six years, the contract is not within the intent of the “ statute.” So that I cannot doubt, but that if the defendant were to say, “ the debt is so, but I will not pay,” he would be liable. This puts an end to all idea of a promise, unless by technical fiction or legal implication, the necessity if not absurdity of which may be avoided by pleading the special matter.
New trial granted