1 Del. 204 | Del. | 1833
"This action was commenced on the 1st May 1832, on a promissory note dated 13th October 1823, for $404. On the 3rd of July, 1826, the deft's. paid in part satisfaction of this note $100, and on the 31st December 1827, the interest remaining due upon the note was paid. The deft. pleads and relies on the statute of limitations as a bar because the last of these payments was made more than three years before the commencement of the action; that three years is the period of limitation from the time of the last payment and not six; the old cause of action (the promissory note,) not being revived by the subsequent acknowledgment, the plff. should have proceeded on the new promise, the old cause of action being the consideration only of the new promise.
It is not disputed in this case that a payment of a part of the debt is evidence of a promise to pay the remainder, so as to prevent the operation of the statute as a bar. Indeed it is now well settled, and has been for more than one hundred years past, that an acknowledgment *207 of a subsisting demand, or any recognition of an existing debt, is evidence of a promise to pay it. The courts in England from the decision in Heyling vs. Hastings in 1698, to the case of Acourt vs. Cross in 1825, have maintained that (the ground on which the statute proceeds is, that after a certain time it shall be presumed that a debt has been discharged. An acknowledgment rebuts that presumption, and then the plff. recovers not on the ground of having a new right of action, but that the statute does not apply to bar the old one. This is the language of the judges inThornton vs. Illingsworth, (2 Barn. Cresw. 224,) decided in the year 1824. So in the case of Perham vs.Raynall and others (2 Bing. 305.) Chief Justice Best says `the presumption certainly is that the debt if any has been paid. But the presumption may be rebutted, and is rebutted by a subsequent acknowledgment. From the decision of Heyling vs. Hastings (1698,) down to the present time (1824,) it has always been holden that a new promise revives the old debt, but does not create a new one.' It is true this same judge in the year following (1825,) seems to have changed his opinion in this respect, and says `It seems to me that the plff. should have been required to declare specially on the new promise, and ought not to have been permitted torevive his original cause of action. Acourt vs.Gross, 3 Bing. 329. In the case of Tanner vs.Smart, 6 Barn. Cresw. 603, decided in 1827, it is to be collected from the whole case that this latter opinion of Chief Justice Best is not recognized to be law; for there the original cause of action was declared on, and the only doubt in the case was whether the. acknowledgment was such a one as amounted to a promise to pay the debt.
In addition to this we have the uniform decisions of the courts of this state as far back as the memory of the oldest lawyer extends. They have considered the subsequent acknowledgment as reviving the old debt, and not creating a new one. They have in effect treated it as many of the English decisions do, as a waiver of the state. It has often been decided here as well as in England, that an acknowledgment made after action brought prevented the bar, and this evidence could only have been received on the ground that the old debt was revived; the new promise which is spoken of being subsequent to the commencement of the action could not sustain it. So it has been decided that an acknowledgment by parol, is sufficient evidence to revive the deft's. liability on a contract reduced to writing in pursuance of the statute of frauds; the court saying that a written acknowledgment was not necessary in such a case, because the deft's. liability was fixed by the original promise in writing, and the acknowledgment within six years, was only to show that such liability had not been discharged. 1 Barn. Ald. 690. The practice of declaring by an executor upon a promise to him as such, to pay the debt of the testator was much urged at the bar. In that case no doubt you must declare on the new promise, for every promise to be binding must be made by a person competent to make it, and to a person inexistence to receive it. 6 Taunt. 310; 13 Com. Law Rep. 88. Besides, if the executor were to declare on the original promise to the testator, and to the plea of the statute of limitations *208 were to reply the promise made to himself, it would be a manifest departure in pleading, and a good ground for a demurrer. But who ever saw, as between the original parties, a declaration on the new promise? Has such a case occurred either in England or in this state? We are not aware of such case.
It is not to be denied that the later decisions in England on the statute of limitations have left the law in a confused and unsettled state. Indeed it is difficult to say what is the law at this time on the subject. It is certainty not settled, and seems to vary according to the caprice of the judge who tries the cause. If the old debt is extinguished and you must proceed on the new promise, what is the consideration of that promise? Certainly there is no legal obligation to pay a debt extinguished by statute. Chief Justice Best who seems to have taken the lead on this subject, in Acourt vs.Cross, takes occasion to say that it is unchristian to compel a man to pay a debt barred by the statute, and he repeats the observation in another case. If it is unchristian to compel one to pay such a debt, there cannot be even a moral obligation to pay it. And yet this latter is the only ground on which theconsideration for the new promise is attempted to be supported by those who say that the old debt is not revived by the subsequent acknowledgment. But it has never yet been determined that a mere moral obligation is a sufficient consideration to raise an implied promise. 1 Wheat. Selw. 42. In such case there must be an express promise to be binding on the party. Such is the case of one who contracts a debt during infancy and promises after his arrival at full age to pay it. So in the case of bankruptcy and insolvency. In such cases the law will not imply a promise from the mere acknowledgment of the debt, there must be an express promise to pay. And if the statute of limitations extinguishes the debt, and the subsequent acknowledgment does mot revive it, there would be nolegal consideration; it would at most be a mere moral obligation from which the law would not imply a promise to pay, and would not compel one to pay unless he had expressly promised. No one doubts that the naked acknowledgment of a subsisting demand takes the case out of the statute. This has never been denied. If it be so, and no express promise be necessary, you are not to proceed on the new promise but upon the old debt, the remedy which was suspended being restored by the acknowledgment.
Since the late decisions in England to which we have referred, our statutes of limitation have all been revised, and none of the new principles attempted to be established by those decisions are introduced into our statute. Taking the law to be thus that the acknowledgment of a subsisting demand revives the old debt and does not create a new obligation, it follows in this case, where the demand is on a promissory note, that the period of limitation is six years and not three; therefore that the plff. is not barred.
It is not necessary to decide the other question presented to the court; the decision of this question being conclusive against the defendant.'"
The Court directed this entry:
And now, to wit: this thirty-first day of October A. D. 1833, this cause having been heard at the last term of this court, and the same *209 having been debated by counsel on both sides; and the court having held the same under consideration until this time, it is thereupon considered and adjudged by the court that the claim of the said John Duncan the plff. is not barred by the act of limitations aforesaid, and that the entries aforesaid in the books of Newlin and Woollaston, being all made more than three and within six years before the bringing of this action, had the effect, in law of preventing the said act of assembly from being a bar to the recovery of the said promissory note declared on in this action. And it is further considered and adjudged by the court that the said John Duncan the plff. ought to recover in his said action; and it is further considered, adjudged and ordered by the court that the record be remanded to the court below, and that the said Thomas S. Newlin the deft. pay the costs in this court.