Sanderson v. Olmsted

1 Chand. 190 | Wis. | 1849

Stow, C. J.

This was an action of assumpsit, brought in the late district court of Milwaukee county by the defendant in error, on a promissory note. The cause was tiled at the last term of the Milwaukee county circuit court. The facts in the case as presented in the bill of exceptions, and on which the decision depends are, that the note in question was made and became due in the state of New York, in 1817 ; that it was attested by a subscribing witness, and that the maker has resided within our jurisdiction since 1835.

It was conceded on the argument that the defendant below, having resided here less than twenty years, and this being an attested note, which is not barred- by the statute in less than that time, the statute of limitations could not be pleaded to it. But it is contended by the defendant that, though the note is not barred by the statute, it is by the common law presumed to be paid, and that he is entitled to the benefit of this presumption under the general issue. On the other hand, it is insisted by the plaintiff, the defendant in error, that oui- statute of limitations, having adopted the common-law period of presumed payment as the term beyond which an action on a bond, attested note, etc., shall not be prosecuted, has in effect done away the common-law rule on the subject. This argument I understand to mean that, under the provisions of our statute, no lapse of time can avail the party as a defense, unless he pleads the statute in bar. I do not so construe the statute. It was undoubtedly passed to aid defenses to stale demands, and was not designed, as I conceive, otherwise to affect the rule of the common law than as famishing the party an additional method of availing himself of it. It then becomes necessary to inquire whether, to entitle a party to the protection of the common-law' presumption of payment after twenty years, he must have resided for all that period within our jurisdiction. This is a question of great importance, and not free from difficulty. It bas been decided differently by different tribunals, and differently by the same tribunal at different times. The weight of precedent (for binding authority there is none) would seem to require the entire joeriod to have been passed within the jurisdiction in which the action is brought. But here the question is an open one, and one which we are at liberty to settle as we deem most expedient for the purposes of justice; and we think that public policy and private security alike will be best promoted by applying the salutary oblivion of the common law to all ancient demands, no matter where contracted, or where the parties have resided. No good reason is perceived why, while time’s scythe is destroying in all regions alike the proofs of business transactions, his hour-glass should not in an equal extent record the period when those proofs become unnecessary. A different rule would be likely to be attended with great individual injustice and much public inconvenience. Once let it be known that the stale and outlawed demands of other states and countries wero,'prima fade enforceable against our citizens until after a residence here of twenty years, all would be exposed to vexatious and harassing suits, and many to min; while our combs would soon be flooded with prosecutions of musiy claims which none of the tribunals of our sister states or of Europe would entertain. On the other hand, the rale we now establish can work no practical inconvenience or injustice. It does not bar an action, and at the outside only admits a presumption of payment, which presumption, in almost all cases where actual payment has not been made, can be easily repelled. Entertaining these views, I think the circuit court erred in not leaving the question of presumed payment to the jury, and that the judgment of the court below should be reversed.

Judgment reversed.