20 Johns. 576 | Court for the Trial of Impeachments and Correction of Errors | 1822
The questions raised on the argument, are :
1. Whether this is a case coming within the exception in the statute, as concerning the trade of merchandise between merchant and merchant, their factors or servants ?
2. Whether the appellants are trustees; and whether the claim upon them relates to the execution of the trust 5 and, therefore, not within the statute ?
3. From what time the statute begins to run; whether from the demand of payment, in 1821, or from the time the sales were completed, and the rendering the account thereof, on the 8th of July, 1814 ?
4. Whether the answer admits the claim to be subsisting and unsatisfied, and thereby defeats the operation of the statute?
1. The Chancellor has examined the first question very elaborately, and his conclusion upon the whole is, that assuming the case before him to be one that concerned the trade of merchandise between merchant and merchant, the statute was well pleaded, and the case does not fall within the exception. In the case of Ramchander v. Hammond, (2 Johns. Rep. 200.) the Supreme Court decided, that although there was a verbal difference between our statute of limitations and the statute of James I., yet that our statute, in a case concerning the trade of merchandise between merchant and merchant, must be confined to actions on open or current accounts, and that the exception did not extend to accounts stated. That case did not call for a decision of the question, whether the exception did, or did not, embrace a case where the items were all on one side. Whether the statute is at all applicable to a case of mutual dealing and mutual credits between merchant and merchant, is a question not now' necessary to be decided.
2, Is tlie claim to be considered a trusty and are the appellants to be regarded as trustees ?
If it be a trust, and if the appellants are to be regarded as trustees, the conclusion is certain, that the statute is no bar. When I say trust, I must be understood as using the term in its technical and legal sense. It is to be observed, that, strictly speaking, the statute of limitations does not apply to a Court of equity. That Court has adopted it as a fit and convenient rule, but with its own restrictions, which are, that in cases of fraud and trust, it shall not apply. The Chancellor, in Decouche v. Savetier, (3 Johns. Ch. Rep. 215.) has gone fully into the subject, and has shown, what indeed could not have been denied, that the statute affords no bar in case of a trust.
The cases cited by the Chancellor, (Godfrey v. Saunders, 3 Wilson, 94. and Stiles v. Donaldson, 2 Dallas, 264.) were not decided upon the principle of a trust, but they turned exclusively upon the question, whether the accounts claimed in the one case, and set off in the other, were barred by the statute of limitations, on the exception in the statute, of accounts between merchant and merchant. If they are entitled to any weight, it is on the point already discussed. In the broadest sense, any confidence reposed by one man in another, is a trust _s but we cannot admit this
3. The third point gives rise to the question, whether a demand of payment was necessary prior to the institution of a suit, and whether the right of action then first accrued. It cannot be doubted, that when the right of action became perfect, from that period the statute began to rim.
As has been already stated, the bill charges, that on or-about the first of June, 1814, the respondents presented to -the appellants an order from Dickinson, and demanded the
4. The fourth point is, whether the answer admits the claim to be subsisting, and unsatisfied, and thereby defeats the operation of the statute. In April, 1821, the appellants, through their counsel, offered the respondents’ counsel, to pay them one third of the proceeds of the linens, without deducting therefrom (or in other words giving up) the charge for commissions, explicitly stating, however, at the same time, that they were discharged from all liability by virtue of the statute, and that they reserved a right to avail themselves of the statute in their defence, if the offer was . refused. Now, the question is, whether the admission of the existence of the debt, and that it had never been paid, under the circumstances of the case, is a waiver of the statute. After a review of the cases upon this subject, and particularly those decided in the Supreme Court, I am of opinion, that the distinct admission in the answer, that the appellants never were called upon by the respondents to pay or account for the proceeds of the linen, and that they had no reason to suppose that the respondents would have accepted the proceeds, together with the offer of payment, by the appellants, in 1821, renders them liable to pay the respondents, and defeats the operation of the statute. In the case of Sands v. Gelston, (15 Johns. Rep. 511.) I delivered the opinion of the Court, and, as the case shows, contended sue
Platt, J:, and Woodworth, J., concurred.
Senator. The first question which arises in this cause is, whether it is a case coming within the exception to the fifth section of the statute of limitations, made in favour of “ actions which concern the trade of merchandise between merchant and merchant, their factors or servants.”
In the consideration of this question, it is important to inquire how far the mutuality of the accounts between the parties, or the necessity of an account current, as distinct írom a specific sale of merchandise between merchant and merchant, is material to entitle the party to the benefit of the exception. The decisions in the English Courts on the statute 21 James I. (ch. 16. sec. 3.) are, in some measure, various, and many of them are, to my mind, very unsatisfactory. The only authority requiring the demands to be mutual, which I have been able to find, is a dictum, of Denison, J. in Cotes v. Harris, (Buller’s N. P. 149.) I say a dictum, because, by the loose and uncertain report of that case, it does not appear to have concerned the trade of merchandise between merchant and merchant; and although Denison J. is made to say, “ that the clause in the statute of
He there uses the case as authority for extending the benefit of the exception to other persons than merchants; for, in the very case then under consideration, and to which he applies the authority of Denison, J. he overrules the objection, that the exception extends to no other description of persons than merchants.
If my view of these cases be correct, it does not very satisfactorily appear, that the rule requiring the accounts to be mutual, has ever been adopted in England, in relation to a case concerning merchants’ accounts.
But if such a rule prevailed there, it may well be doubted whether it can properly be applied to cases arising under our statute. By the statute of James, “ such accounts as concern the trade of merchandise,” &c. are excepted; and from this phraseology, accounts being used in the plural number, the idea of the rule may naturally have arisen; but our statute excepts all “ actions which concern the trade of merchandise,” fee.; and, I apprehend, an action brought by one merchant against another, to recover the value of fifty bales of goods sold, as much concerns the trade of merchandise, as if there had been a reciprocal interchange of goods between them, leaving a balance of fifty bales upon one side or the other. And though the reasons founded upon public policy, and which produced the exception in favour of merchants, may not operate as strongly in the case of an action brought by one merchant against another to recover for a single bale of goods sold, still it cannot be denied to be as much within the letter and spirit of the exception, as if there had been fifty bales sold. If the one as immediately concerns the trade of merchandise as the other, why is it not
Whether the cause of action must more immediately concern the trade of merchandise, or may be more remotely related to it, is another question which arises upon this branch of the subject. And here, it would seem to be a position founded in good sense, and sanctioned by authority, that the cause of action must be a direct and immediate concern of trade, and that whenever it is in any degree removed, the benefit of the exception is lost, and it comes within the operation of the statute, so as to be barfed by it. Where a note is taken upon the sale of goods, or where an account is stated, and the balance ascertained and settled, it is no longer a concern of trade. The matter being closed, the reasons for the exception, arising from the exigencies of trade, no longer apply, and the cause of action is changed ; for the mere stating of an account, even though a note is not taken, is a merger of the original cause of action, and in that case an action cannot be maintained upon the implied assumpsit arising from the delivery of the goods, but the party must resort to an insimul computassent. (1 Bac. Abr. 281. tit. Assumpsit, G. 1 Mod. 205. 2 Mod. 43, 44. Buller's N. P. 129.) And it may be worthy of remark, that although some of the decisions in the English Courts seem to be at war with the statute itself, and some of them are inconsistent with each other, yet most of them, where the statute has been allowed to bar the action, proceed upon the ground, that an account had been stated between the parties.
Thus, in Webber v. Tivill, (2 Saund. 124. 127. note 5.) an account had been stated, and the argument of the counsel
It is upon this principle, that a distinction has been made between accounts that are open and current, and accounts stated. The former have been held to be within the exception, while the latter have constantly been held to be barred by the statute. (Ballantine on Limitations, 71.)
When a note, therefore, is accepted for the balance of an account, or the account is stated, and a balance ascertained and agreed upon, the parties voluntarily, and by their own act, abandon the cause of action, which arose from and immediately concerned the trade of merchandise, and put the matter upon the footing of all other demands, for which an action of assumpsit will lie, even against a factor or receiver j and in that case the statute becomes a bar as in ordinary cases.
At common law, no limitation of personal actions was known. (Co. Litt. 115.) And but for the intervention of the statute under consideration, every person, without distinction, might have pursued the legal remedy for his demands, though twenty years had elapsed. That right still remains to all, unless inhibited by the statute, in derogation of what was before a right common to all. In its terms, the statute restrains the bringing of certain personal actions to the period of six years from the time they severally accrue; but from this restriction are excepted, “ actions that concern the trade of merchandise, between merchant and merchant, their factors or servants.” . Every action, then, that falls within this description, being excepted from the operation and effect of the statute, must remain as it stood before, untrammelled by any limitation or fixed period for its commencement.
If this be correct, it is inconceivable, unless through misapprehension, how Lord Hardwicke, (2 Vesey, 400.) could say, that it was the intention of the statute, “ to prevent dividing the account between merchants, where it was a running account, when, perhaps, part might have begun long
Had the legislature intended such a construction, how very readily and naturally would the words, when some of the items come within six years, have been inserted. The intention would then have been clear and palpable; and the want of something of that, or a like import, is, to my mind, the strongest argument that no such thing was intended.
But when these cases are contrasted with that of Catling v. Skoulding, (6 Term Rep. 189.) decided by Lord Kenyon, and the Judges of the King’s Bench, it would seem, that between Lords JVorthington and Rosslyn, and Sir Wm. Grant, on the one hand, and Lord Kenyon, Sir Wm. Henry Ashhurst, and Sir Soulden Lawrence, on the other, the exception to the statute was completely annihilated. For, in the latter case, the Court of King’s Bench decided, that where there are some items of mutual accounts within the six years, as between parties not merchants, and in a matter not concerning trade, it is sufficient to take the case out of the statute. Thus, putting the two distinct classes of cases upon the same footing, with this distinction, that in the one case it is put upon the rational ground, that the new items, furnish evidence for the jury to presume an acknowledgment of the old, and in the other, all are assumed to be within the exception, because there are some items that have no need of its benefit.
The decision of the Court of King’s Bench, in Catling v. Skoulding, is directly in the teeth of Lord JVorthington, when he says, in Martin v. Heathcote, that the statute
The opinion of Lord Kenyon not only received the sanction of the other Judges, upon due consideration, but is directly supported by Jones, Cooke, and Berkely, Justices, in Sandys v. Blodwell, (Jones, 401.) and by Lord Hardviicke himself, in the case referred to in 19 Vesey, 180.
This doctrine is conceded in Godfrey v. Saunders, (3 Wilson, 94.) and directly sanctioned in Stiles v. Donaldson, (2 Dallas, 264.) where, though 17 years had elapsed since the date of the last item of the accounts, and no subsequent demand, the Court were unanimously of opinion that the accounts were not within the act of limitations. That was a case of principal and factor. '
This doctrine is shaken only, if at all, by the dictum of Lord Hardwicke, in Welford v. Liddell, by the case of Martin v. Heathcote, before Lord JYorthington, to which I have before referred; by the case of Bridges v. Mitchell, (Gilb. Equ. Rep. 224.) in which it is said, that, “ if the account be by the plaintiff deserted, then it is barred,” but otherwise the ground of decision does not very clearly appear;
This last case I do not consider of much weight, because it appears to have been decided upon a reference to Welford v. Liddell, and Bridges v. Mitchell, only; neither of which, in my opinion, bear out the Master of the Rolls in his decision.
The case of Ramchander v. Hammond, (2 Johns. Rep. 200.) in the Supreme Court of this state, was an action upon a promissory note; and to a plea of non assumpsit infra sex annos, the plaintiff replied, that the action concerned the trade of merchandise, between merchant and merchant. The defendant rejoined, and to this there was a demurrer and joinder. The Court held the replication bad; and that decision may well be supported by the reasons assigned, that the exception “ does not apply to an account stated;” that “ it must be a direct concern of trade;” and that “ liquidated demands, or bills and notes which are only traced up to the trade of merchandise, are too remote to come within this description.” This comes within the principle before stated, of a case, where, by the act of the parties, the cause of action has been removed and changed from an immediate concern of trade, and thereby put upon the footing of ordinary demands. It is true, the Court, in deciding this case, indulge the language, that “ the words” (of our statute) “ are not so broad as to warrant a departure from the adjudications which have been made on the English act.” But this remark was not called for by the necessity of that case, and I think we are warranted in supposing that it was made without due consideration ; for it would require a degree of flexibility, unusual to our Courts of justice, and which would be to be deprecated, if it existed, to thread the mazy contradictions of those decisions ; and the bare attempt to reconcile them, at once, demonstrates the impracticability of the
Should the question upon the construction of our statute, now be considered as one of the first impression, and taking its words as standing alone, without regard to the incongruous and contradictory decisions of the English Courts, I apprehend it would be difficult to convince any man of sound understanding, that the statute was intended to have any operation upon an action concerning the trade of merchandise, when it arises between merchant and mer~ chant.
And this construction is directly supported by the authority of the Supreme Court of the United States, in the case of Mandeville & Jameson v. Wilson, (5 Cranch’s Rep. 15.) That was an action of assumpsit, brought in the Circuit Court of the district of Columbia, for goods sold and delivered, and for the hire of a slave. The defendants pleaded non assumpserunt, and the statute of limitations ; and to the latter plea the plaintiff replied, that the money became due and payable on an account current of trade and merchandise between the plaintiff and defendants, as merchants, and wholly concerned the trade of merchandise. There was a rejoinder, surrejoinder, demurrer, and joinder, but the case turned upon the sufficiency of the replication. • The Court below gave judgment for the plaintiff; and, upon a writ of error, that judgment was affirmed- Ch. J. Marshall, in giving the opinion of the Court, says, “ that the exception in the statute applied to actions of assumpsit as well as to actions of account. That it extended to all accounts current which concern the trade of merchandise between merchant and merchant. That an account closed by the cessation of dealings between the parties, is not an account stated, and that it is not necessary that any of the items-should come within five
In the case under consideration, there has been no account stated between the parties, so as to vary or alter the character of the original transaction between them. The appellants did furnish an account, but some of its most prominent items were objected to at the time, and have not since been settled or agreed to. The mere act of furnishing an account, does not make it a stated account, until it has the assent of both parties to its correctness. A different rule would put it in the power of one party, at any time, to impose upon the other a false account, and conclude him by it.
Lord Hutchins, in Sherman v. Sherman, (2 Vern. 276.) says, “ amongst merchants if is looked upon as an allowance of an account current, if the merchant that receives it does not object against it, in a second or third post; thus, plainly admitting the right to object. In the account furnished in this case, there is a charge for commission, which is one of the items objected to, and which, by the letter of the appellant, James B. Murray, to George Dickinson, the agent of the Columbian Insurance Company, dated July 7, 1813, was expressly stipulated not to be charged; “ it being understood,” says he, “ that in case of sale being made by my house, no commission is to be charged for such sale.”
The remaining branch of this subject, and in relation to which the most serious doubts pressed upon my mind, at the outset of the investigation, is, whether the Columbian Insurance Company could be considered a merchant within the meaning of the exception to the statute, so as to be entitled to the benefit of that exception.
Notwithstanding Justice Atkins, in Farrington v. Lee, (1 Mod. 270.) expresses an opinion, that “ the makers of the statute had a greater regard to the persons of merchants, than the causes of action between them,” I cannot but entertain a contrary sentiment. If it were, as Justice Atkins supposes, a benefit to the person, why was it not extended to all their transactions, as well to other actions as to those which concern the trade of merchandise ? If it is to the person of the merchant, how long must he have been engaged in the business,
If that construction is correct, the words, “ which concern the trade of merchandiseare entirely useless in that clause of the statute 5 but so far from that being correct, I apprehend they constitute the strength and marrow of the exception, and that the words," between merchant and merchant &c., are to be considered as being added for the purpose of confining the exception to concerns that are purely mercantile, and excluding others, such as transactions between á merchant and his customer. It is, then, the business of trade, and not the person engaged in it, that is entitled to the benefit of this exception; or, in other words, the person is entitled to it in respect to that business, and that only, for the encouragement of which the exception was inserted.
Thus, the assignees of a bankrupt merchant, would be as much entitled to the benefit of this exception, in relation to every concern of trade arising out of the affairs of the bankrupt, as the bankrupt himself. So would the representatives of a deceased merchant; and that, whether they had ever been engaged in trade themselves or not.
In the case under consideration, the Columbian Insurance Company had insured, for S. fy L. Clarkson &f Co., a quantity of sugar on board the ship Egeria, on a voyage from JSTew-York to St. Pttersburgh or Archangel. The voyage was broken up at Copenhagen, and the sugars being abandoned to the insurers, as for a total loss, were received by the agent of the company, sold on their account, and the proceeds, either for the purpose of trade, or for the more convenient transmission of the amount to this country, were invested in linens, for which an account is sought by the bill filed in this cause. No one would doubt, that in the hands of S. &/• L. Clarkson fy Co., this would have been purely a concern of trade ; and as it is the business which gives character to the merchant, and not the merchant to the business, it can be no less a concern of trade in the hands of the Columbian Insurance Company.
Applying the principles before stated to these facts, it strikes my mind, and, indeed, is most satisfactory to my judgment, that, pro hac vice, at least, the Columbian Insu
I express this opinion under a conviction of the importance of the subject, but with no other distrust than what arises from a diffidence of my own ability to do it justice.
With the consequences of this doctrine, in a judicial capacity, we have nothipg to do. It is sufficient for our present purpose, that such is the law ; and if its policy has an evil tendency, which I cannot apprehend, it remains for legislative correction. I consider such of the English decisions as contravene the construction I have given to the statute, as little better than judicial usurpation of legislative authority.
On the second question that arises in this cause, which is, whether the claim of the respondents relates to the execution of a trust, so as, on that account, to be exempt from the operation of the statute, it would seem to be unnecessary to dwell, as the decision of either point in the case in "favour of the respondents, is conclusive upon the merits of the appeal. But as this second point was chiefly relied upon in the argument, (and as it is by no means certain, that the other members of the Court will agree with me in opinion as to the first,) I shall attempt a brief consideration of it.
To arrive at a correct decision upon this question, the relative situation of the parties is to be ascertained. From the facts disclosed in the bill, and which, for the purpose of the present discussion, must be taken to be true, so far as they are not,
A community of interest, in profit and loss, was not in the contemplation of the parties at the time, for a severance of the property was then spoken of, as being in the option of the party, before the adventure should be at an end; and though there is a joint purchase, yet if each is to manage his share as he judges best, so that the profit or loss of the one may be more or less than that of the other, it is not a partnership. (Coope and others v. Eyre and others, 1 H. Black. 44.)
But these goods were received upon the express confidence, (I refer again to the letter of James B. Murray,) that they were to be sold at Gottenburgh, and the proceeds accounted for, and, if not sold at Gottenburgh, to be shipped to America, sold, and the proceeds accounted for, or the goods delivered to order, leaving it to the option of the company to put an end to the trust before sale; and, in my view of the matter, it is as clear a case of direct trust, as it is possible for the acts of the parties to make, and as much
To such a case, it was conceded on the, argument, that the statute of limitations did not apply. But a distinction was attempted to be drawn, between direct and implied trusts, to the latter of which, it was contended, this case belonged, if a case of trust at all, and to which, it was also contended, the statute did apply.
Courts of equity may, perhaps, have applied the statute, by analogy, to cases where, by construction of law, the party is placed in' the situation of trustee, without his assent, for the sake of the remedy; that is, however, not the case here. The law assigns to the appellants no other situation than what was contemplated by the parties at the time of the transaction ; and whether they are called factors, agents, or trustees, can, in my view, make little difference. A factor, though he have the right at law, is, in equity, but a trustee. (2 Vernon, 638.)
The case of Lady Hollis, (2 Vent. 345.) is analogous to, though, perhaps, not so strong as the present. Her ladyship lent £100, and in the note given for it, it was stated, that it should be disposed of as she should direct. The Court held it to be a depositum, or trust, and decreed payment, though, otherwise, it had been barred by the statute.
In cases, too, more clearly of the character of trusts implied than the present, the statute has been held not to apply, as in Heath v. Henly et al. (Ch. Cas. 20.) where the son and executor of Chief Justice Heath, who was made Chief Justice, at Oxford, during the difference between the king and parliament, but never sat at Westminster-Hall, exhibited a bill against the defendants, who were prothonotaries of the King’s Bench, for an account of the money received by them during the time of his being Chief Justice. The statute was pleaded, and the Court, upon argument, held it to be a trust mrtute officii, and overruled the plea.
inquired, whether the majority of the members were to be considered as concurring in the
So, also, in Sheldon v. Weldman, (2 Ch. Cases, 26.) where the son and executor filed a bill for an account of money received from the father, who gave it him to compound for his estate sequestered for delinquency at Goldsmith’s-Hall, the Court declared it a trust, and therefore not within the statute.
The claim on the part of the respondents, as presented to the consideration of the Court, addresses itself to the moral sense, in a character of strong and prevailing equity.
A technical defence is interposed. There may be facts and circumstances existing, which the nature of the defence does not disclose, and which justify the course to the conscience of an honest man. In judgment of charity, we are bound to suppose that there are; but, whether so or not,
It is a consideration which ought not to weigh upon the mind in the decision of this cause. The appellants are entitled to the benefit of*tbeir defence, if founded upon the principles that are known to govern a Court of equity.
In no view, however, that the case has presented itself to my mind, and after the most careful investigation which I have been able to give it, does it appear to me, that the plea can be sustained. I am of opinion, therefore, that the order of the Chancellor ought to be affirmed.
This being the opinion of the rest of the Court,
Decree of affirmance.
On taking the sense of the members of the Court on this question, it appeared that .all of them, except six, concurred with the Chief Justice, on the point, that the answer of the defendants contained such an acknowledgment and admission of the plaintiff’s debt, as to defeat the operation of the statute of limitations, and that, therefore, the statute was no bar to the plaintiffs’ claim.
then moved for a rehearing, or a modification of the decree, or that the cause might be sent back to the Court of Chancery, without prejudice, on the point on which the Court had grounded their decision, so that the defendants might amend their answer, or file a supplemental answer, showing, that there was no such admission, or, if made, that it was confidential, and made between counsel, for the sake of peace, and during a negotiation for a compromise, and could not, therefore, prejudice their legal or equitable rights, when the compromise was rejected. They read several affidavits as to that fact. To show that the appellants had a right to amend, they cited Coop. Equ. Pl. 338. 6 Vesey, 587, 580. Mitf. Pl. 261. Hind’s Pr. 416. Beames’s El. Pl. 319, 320. 4 Bro. P. C. 640. 642. 4 Johns. Ch. Rep. 377.; and that even after hearing and a decree. (2 P. Williams, 427.) That this point, not having been argued or decided in the Court below, could not now be decided upon here. (18 Johns. Rep. 558, 559, 560.) The offer being made by counsel, for the sake of peace, cannot be allowed to prejudice the rights of the appellants. (13 Johns. Rep. 288. Peake’s N. P. Cases, 6. 2 Camp. N. P. Cases, 106. and note. Bull. N. P. 336. 1 P. Wms. 497.)
said, that the case of Beekman v. Frost, (18 Johns. Rep. 544. 558.) showed merely, that where a new point is taken, in this Court, for reversing the decree, it will not be heard; it is otherwise, where the new ground .is
said, that as there was no replication filed, the whole answer must be taken to be true; and there was an express reservation of the plaintiffs’ right to avail themselves of the statute, accompanying the offer of compromise. The plea of non accredit actio, &c. at common law, contains as much an admission of the debt, as the answer of the appellants. Where a parol agreement is relied on, when the statute of frauds requires it to be in writing, if the defendant admits the parol agreement, in ever so broad terms, but says, at the same time, that he intends to protect himself against it, under the statute, the Court will allow him to do so. Now, in the present case, the answer of the appellants contains a most explicit denial of any offer or admission; and avers, that if any such offer or admission was made, it was with the express declaration accompanying it; that they would rely on the statute of limitations for their defence. The Court, then, ought to modify their decree, so that the appellants may not be prejudiced by a decision here oh that ground.
The motion is to send back this cause to the Court of Chancery, with directions, to allow the appellants to amend their answer, so as to do away the effect of their counsel’s admission of the debt. It is a novel application to a Court of Appeals. In the case of Filkins v. Hill, (4 Bro. P. C. 2 ed. 640.) in the House of Lords, certain issues were directed by the Court of Chancery to be tried at law, and which did not embrace the merits of the controversy, or the matters intended to be put at issue; and the House of Lords reversed that part of the decree, with liberty to the respondents to amend their bill, so as to put at issue the matters intended to be tried by the issues; and the appellants were, also, allowed to put in a new answer to such amended bill. This direction of the Court of Appeals was proper, under the circumstances of that case. Here,
Platt, J. was absent.
Woodworth, J. said, that the application was certainly novel$ but he was satisfied that this Court had the power t® grant it, if a fit case was presented. That it was to let in the plea of the statute of limitations, ought not to excite prejudice against the party j as that might be a very meritorious defence. The rule at common law, to refuse to set aside a default, to let in the plea of the statute, has been exploded. If the Court below, on the ground which has bee® taken, would have allowed the amendment, of which he had no doubt, the appellants ought not to be without remedy here. It is the genius of a Court of equity to afford facility to arrive at the true merits and justice of the case. The Chancellor decided the cause solely on the ground of the
S. M. Hopkins, Senator, said, that every plea of the statute of limitations virtually admitted, that the debt had never been paid. It was an admission of the debt on the record; as, by not traversing the declaration, which alleged the existing debt, but tendering an issue on a distinct matter, the whole of the allegations in the declaration were admitted. Every plea, therefore, of the statute of limitations might, with equal propriety, be said to contain an admission of the debt, and to conclude the party from availing himself of the statute. Courts are not to suppose it their duty to get rid of the statute of limitations; it is often, as was observed by Lord Mansfield, a just and conscientious plea. We are not to inquire into the motives of persons who plead the statute; but are to presume that they are just and fair. The language of the answer, that to avoid litigation the appellants proposed a compromise, showed that it was an offer of peace. It is impossible for a party to propose a compromise without an implied admission of the debt. AH negotiations for amicable settlement between parties would
Livingston, Senator, said, this Court, no doubt, would be confined to what took place in the cause in the Court below; but how are we to know what points were argued in the Court of Chancery, except from the record, and we are to consider them, and such points as grow out of the pleadings and facts appearing on the record. The counsel for the appellants should not have suffered the proceedings to have been brought here, in the manner they have done, if they intended that any point arising out of those proceedings should not be relied upon or argued. He concurred in the opinion of the Chief Justice, that the motion ought to be denied.
Shepherd, Senator, said, he thought the motion ought to be granted.
Vielie, Senator, said, that it was a novel application, to move the Court to reverse its own decree. The Court of Chancery ordered and decreed the plea and answer to be overruled; and that the defendants there put in a full and perfect answer to the bill, &c. A majority of-this Court has affirmed that decree. The appellants, therefore, will now gain all they ask for by this motion. They may incorporate in the answer which they are to put in, what they bow ask for, if it can avail themj or, by an amendment, of the plea, if the plea is directed to stand for an answer, obtain every purpose of the present motion. He was, for this reason, against granting the motion 5 otherwise. Be should
The question being taken on the motion, a majority of the Court
Per Curiam. Motion denied.
Note. Mr. Griffin, for the respondents, then offered a draught of a decree, stating the judgment of affirmance, as already mentioned; but adding thereto, that the above motion was made and overruled, and, also, that the reason for the affirmance was, that the answer contained a sufficient acknowledgment of the debt, independent of the negotiation between the counsel. But the Court did not adopt the decree offered, though no formal vote was taken upon it; and they directed that the usual order and decree be entered, according to the judgment given on the 12th instant ; and that the motion just decided was a subsequent and distinct proceeding, of which a distinct entry was to be made in the minutes of the Court; and thereupon the following order was entered: “ This Court, having heard the arguments of the counsel of the respective parties, on the motion made by the appellants, founded on the affidavits in this cause, filed in this Court, that the plea of the appellants be allowed to stand for an answer, with liberty to the respondents to except to the same, and with leave to the appellants to amend their answer in the Court below, or to file a supplemental answer, do order, adjudge, and decree, that the said motion be overruled, and denied, with costs, to be taxed.”
Five years is the period of limitation by the statute ofVjrginia, and this case arose under that statute.
Nov. 12th. For affirming 25. For reversing 1.
For the motion 6. Against it 18.
Nov. 13th & 14th.
After a cause has been argued on appeal, and a decree of affirmance pronounced, on a point which, though stated in the printed case before the Court, was not much insisted on by the counsel on the one side, or objected to by the other, on the argument, the Court refused, on application of the appellants, to modify the decree, so as to allow them to amend their answer, or file a supplemental answer in the Court below; especially, as it was to help the plea of the statute of limitations,, and the answer, accompanying the plea, contained an admission of the debt.