Wilson v. Torbert

3 Stew. 296 | Ala. | 1831

By JUDGE SAFFOLD.

From the first bill of exceptions, this case appears not to have been embraced by the consent rule, in as much as no appearance was entered for the defendant, during the first week, consequently the declaration under the statute was due on the third day of the term. It was not filed until the eighth; the statute allows defendants three days to file their pleas, after the expiration of the time given for filing declarations. Here the motion was made to open the judgment by default, and for leave to plead on the next day, after the declaration had in fact been filed. In the further disposition of this exception, it is sufficient to observe that the statute contemplates an allowance of three days for filing pleas, after the declarations have been received. By means of the plaintiff’s default, the defendant was denied an opportunity to plead, until one day anterior to that on which he moved to plead. The statute vests a discretion in the Court to extend the time for pleading, according to circumstances. It was also a power incident to the Court, on common law principles, to set aside judgments by default, at any time during the term, on reasonable cause shewn. To regard such judgment, and a variety of orders, which must necessarily be rendered ex parte, or on imperfect knowledge of the facts, conclusive on the Courts, would be a dangerous and inconvenient abridgment of their powers; hence we think there was no error in setting aside the judgment by default, and permitting the defendant to plead.

The second bill of exceptions presents the highly interesting questions, 1st. Whether the acknowledgment of a debt by one partner, after the dissolution of the firm, is sufficient to take the case out of the statute of limitations, as to the other partners. 2d. Whether the admission or promise, in the manner and to the extent made, amounts bo a sufficient acknowledgment of a present debt. The latter, as well as the former, being a grave and highly vexed question, and being found, from the result of our deliberations, unimportant in the determination of this case, no opinion is expressed upon it. Our respecting the responsibility of one partner for the acknowledgment of debts by another, after a dissolution, will dispose of this case. It is a subject on which there has been great diversity of opinion, both in England and the United States; and a full review of them, would extend this opinion far beyond a proper length. It is therefore deemed sufficient to refer only to such cases, as are believed to furnish ample authority to this Court, to decide the question according to our conceptions of justice, and the soundest principles of policy.

It is true as contended in argument, that the case of Whitcomb v. Whiting,^a which held that an acknowledgment of a debt, by one of many joint and several promis-sors, took the case out of the statute as against the others, has generally been treated ass a leading ease in England, and has greatly influenced the decisions in this country, in similar and analogous cases. But it is equally true, that in both countries, many tribunals of the first eminence, have expressed strong disapprobation of the rigor of the rule; and that several, especially in this country, have overruled the doctrine as unsound. It must be admitted, that in the State of New York, the principle is still maintained, that the confession of one partner, without any express authority to settle the business of the concern, made after the dissolution, will take the case out of the statute. Butin that State, it is held that the acknowledgment will not of itself, be evidence of an original debt, -because that would enable one partner to bind the other in new contracts; yet the original debt being proved or admitted, the confession of one will bind the other, so as to prevent him from availing himself of the statute, Smith v. D. & G. Ludlow.^b

A similar doctrine seems to have prevailed in the Supreme Court of Massachusetts, Hunt v. Bridgham,^c and also in Virginia, Shelton v. Coke.^d The Supreme Court of Pennsylvania has established for its government, the contrary doctrine, that the acknowledgment by one partner, after the dissolution of the partnership, will not take the case out of the statute, as to the other partners. The same rule of decision has uniformly prevailed in the Su-Court of Kentucky, as is shewn in the very elaborate opinion of the Supreme Court of the United States, delivered by Justice Storjq in the case of Bell v. Morrison, et al.^a

In this decision of the Supreme Court of the Union, not only are all the most respectable authorities on this subject reviewed with deliberation, but the reason and analogy of the principle are fully investigated. That case it is true, as contended, originated in the district of Kentucky, and the decision was made with reference to the rules of decision in that Slate. The Court remarked, that it was their duty, in a case arising in Kentucky, to pursue the spirit of the decisions there, so far as the principles on which they were made could be gathered. They also admitted that “the English cases decided since the American Revolution, are by an express statute of Kentucky, declared not to be of authority in their Courts; and consequently Whitcomb v. Whiting, in Douglass, and the cases which have followed it, leave the question in Kentucky quite open to be decided upon principle.”

It is not recollected that this question has ever before been fully presented to this Court, or decided by it. The provision of the English statute of limitations, of that of Kentucky, and of our own, are understood to be the same, so far as they relate to the question under consideration; consequently the decision of this question, abstractly considered, ought to be the same under either. As no previous adjudication of our own has established a local precedent, that duty remains to be performed. Principles which have been satisfactorily settled by a uniformity of English decisions, in relation to subjects of which the law and reason are the same with us, are ordinarily recognised as rules for the government of this Court; more especially if the same rules have been generally adopted by the American tribunals; yet the authority of the Court to construe our own statutes, according to our convictions of justice and right, cannot be denied. If the Courts of England, or of any State, have adopted principles of decision, which long experience and improved reflection have condemned, and with which the same Courts have become dissatisfied, such cannot be received as safe precedents for us. In the case of Bell v. Morrison et. at., already cited, Justice Story, referring to the doctrine of Whitcomb v. Whiting, remarks that it has not been received even in England, without hesitation, and reviews some of the English cases thus: “In Clark v. Bradshaw,^a Lord Kenyon, at nisi prius expressed some doubts of it; and the cause went off on the other ground. And in Brandram v. Wharton,^b the case was very much shaken, if not overturned. Lord Ellenborough, upon that occasion, used language, from which his dissatisfaction with the whole doctrine may be clearlty inferred. ‘This doctrine,’ said he, ‘of rebutting the sta tute of limitations by an acknowledgment, other than that of the party himself, was begun with the case of Whitcomb v. Whiting. By that decision, where however there was an express acknowledgment, by an actual payment of a part of the debt by one of the parties, I am bound. But that case was full of hardship; for this inconvenience may follow from it: suppose a person liable, with thirty or forty others, to a debt; he may have actually paid it; he may have had in his possession the document, by which that payment was proved, but may have lost his receipt; then though this was one of the very cases which the statute was passed to protect, he may still be bound, and his liability renewed by a random acknowledgment, made by some one oí the thirty or forty others, who may be careless of what mischief he is doing, and who may not know of the payment which has been made.’” Though the Supreme Court in the case referred to, admit that their opinion was influenced in some degree by the principles of the Kentucky decisions; yet they use language from which their opinion, in the abstract, cannot be mistaken. The opinion remarks, that “by the general law of partnership, the act of each partner, during the continuance of the partnership, and within the scope of its object, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may therefore bind the partnership by his contracts in the partnership business; but he cannot bind it, by any contract beyond those limits. A dissolution however puts an end to the authority. By the force of its terms, it operates as a revocation of all power to create new contracts; and the right of partners, as such, can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds. Even this right may be qualified and restrained, by the express delegation of the whole authority to one of the partners.” In the further examination of the subject, the same opinion fully declares the doctrine, that an acknowledgment or promise, to take a case out of the sta- > both upon principle and authority, to be deemed, not a mere continuation of the original promise, but “a new contract, springing out of, and supported by the original consideration;” and that “after a dissolution, no one part-can create a new contract, binding upon the others; that his acknowledgment is inoperative, and void as to them.” It has not escaped notice, that in the opinion thus quoted, the Court was not unanimous, but. it was the opinion of the majority of the highest tribunal; other questions no less difficult and important, were also involved in the case, and it does not appear from which, or whether of there was dissent.

In the case of Clementson v. Williams,^a the same questions were brought before the same Court, viz: what was a sufficient acknowledgment, to take a ease out of the statute, and whether an acknowledgment by one partner, would revive the debt, as against the other. The case went off on the ground, that the acknowledgment was insufficient to revive the debt against the other; and the latter was left by the Court as a question undetermined. In the decision, however, Chief Justice Marshal remarked, that “so far as decisions have gone on this point, princi-files may be considered as settled, and the Court will not ightly unsettle them. But they have gone full as far as they ought to be carried, and this Court is not inclined to extend them. The statute of limitations is entitled to the same respect with other statutes, and ought not to be exThis was as as 1814.

Chancellor Kent,^b maintains the doctrine which appears to have been preferred by the Supreme Court of the United States. He says, “of late, the decision in Whitcomb v. Whiting, has been very much questioned in England, and it seems now to be considered as an unsound authority, by the Court which originally pronounced it. And we have the best authority in this country for the conclusion, that the acknowledgment of a debt by a partner, after the dissolution of the partnership, will be.of no avail, and will not take the debt out of the statute, as to the other partner, on the ground that the power to create a new right against the partnership, does not exist in any partner, after che dissolution of it; and the acknowledgment of a debt, barred by the statute of limitations, is not a mere continuation of the original promise, but a new contract springing out of, and supported by the original consideration. This'is the doctrine, not only in Pennsylvania, but in the Supreme Court of the United States; and the law in England in this country, seems equally to be tending to this elusion.” This review of the authorities, is deemed sufficient to dispose of the case, and 1 think leads irresistably to the conclusion, that one partner, after the without express authority, cannot create or revive a debt against his late partners, and in this opinion, the Court áre unanimous. Therefore the judgment is affirmed.

Judgment affirmed.

Jüíjoe CRewshaw, not sitting.

a 2 Dong. R. 652.

b 6 John. R. 267.

c 2 Pick. R. 681.

d 3 Munf. R. 191.

a . 1 Peters' R. 351.

a 3 Esp. R. 155

b 1 Barn. & Ald. 463.

a 8 Cranch 72.

b 3 Com.26.