35 N.J.L. 79 | N.J. | 1871
This suit was on an account taken from the book of the late Doctor Hankinson, for medicines prescribed and delivered, and for service performed by the deceased in his professional capacity, for the defendant. On the trial in the court below, in order to prove the medical character of Doctor Hankinson, a writing was offered in evidence, which, upon its face, purported to be a diploma, under the seal of the Medical Society of New Jersey. This instrument was admitted and sent to the jury against the protest of the counsel of the defendant, and this ruling forms the ground of the first bill of exceptions/ The point of objection was, that no evidence was offered to identify the corporate seal in question.
The general rule undoubtedly is, that a seal of a corporation will not be noticed, ex officio, by the courts, and that its authenticity must be shown by testimony. In the brief of the counsel of the defendant in error, the general proposition is not controverted, but it is said that the Medical Society of New Jersey is a public corporation, and that the seal of such a corporation will prove itself. No authority is vouched for this assumption, and it is not probable that any can be found. The only ground for claiming that this society, under the act of 1830, was a public corporation in such a sense as to distinguish it from other classes of persons incorporated on public grounds is, that there is a clause in the statute making it a public act. But this clause is frequent in charters, and has not the effect attributed to it. The legal rule is defined and explained with accuracy and precision by Chief Justice Kinsey, in the case of Den, Tours, v. Vreeland, 2 Halst. 352. On that trial it was necessary for the plaintiff to prove title under a lease from the ministérs, elders, and deacons of the Reformed Bergen Church to Tours. The deed was produced under a seal, purporting to be a seal of the corporation, but no proof was offered of its authenticity. This instrument was overruled at the trial, and the plaintiff non-suited; and this result was approved of by the court in banc. This case has
But it is further contended on the part of the defence, that the fact of Doctor Hankinson’s having the diploma in question was not material to the plaintiff’s right of recovery, and that the admission of this evidence did no harm to the plaintiff in error. This court, in Dow v. Haley, 1 Vroom 354, decided that to support an action on a physician’s bill, the plaintiff must prove that he had been duly licensed or had a diploma, as prescribed by the act incorporating the medical society. It is said this act, which gave rise to this decision, has been
The account on which the action was founded commenced in the year 1841, and continued down to January, 1863, extending over a period of twenty-two years. These charges were all against the defendant, amounting, in the aggregate, to $653. Only two of these charges, being together $8.50, were within six years before the commencement of the suit. It was not pretended that there were any mutual accounts. The only evidence that the plaintiff offered to overcome the defence of the statute of limitations, consisted in the proof of an account of certain payments of cash, commencing in the year 1847 and ending in the year 1864, which the defendant had left with him as administrator of Doctor Hankinson. These payments were sworn to. The last two of these payments, amounting to the sum of $25, had been made within six years before the bringing of this suit. Under these circumstances the court charged the jury that it was a question of fact for them to decide, whether the defendant, by the payment of the last two items in the defendant’s credits, intended to make a new promise to pay the whole of the plaintiff’s account, “and that if they so found, it would take the ease out of the statute of limitations.” This instruction was excepted to.
After a careful consideration of the authorities, I am satisfied that there was not sufficient in the facts above stated to warrant a submission of this case to the jury. There were no facts in dispute, and therefore a naked question of law was presented. The question was simply this: whether a payment of certain sums of money, without any appropriation of such payments, to a creditor who had an account running through many years against the party paying, is, perse, any evidence of a promise to pay the whole of such account. For example, on the 4th of October, 1863, this defendant paid to Doctor Hankinson the sum of $5. It is insisted that this payment took out of the operation of the statute of limitations
Upon turning to the decisions, it will be found that the part payment, which will operate to remove the bar of the statute, must be in part satisfaction of a larger debt known to the party. Professor Parsons, speaking on this subject, remarks : “ It must, however, be certain that payment is made only as part of a larger debt, for in the absence of conclusive testimony, it will not be deemed an admission of any more debt than it pays.” 2 Parsons on Con. 354. The rule thus laid down is fully warranted by the cases. A leading authority is that of Tippits v. Heane, 1 Cr., M. & Ros. 252.
I lvave not thought it necessary to advert to the evidence which was offered on the part of the defendant in the court below, and on which I observe some stress is laid in the brief of counsel. Its general effect is to strengthen the conclusion that the defendant did not admit any indebtedness exceeding the sum included in his payments. But in the view which I take of the legal principles applicable to the case, the testimony has not appeared to me to be of any especial importance.
The judgment of the Circuit Court should be reversed.