Sluby v. Champlin

Yates, J. delivered the opinion of the court. 1. It appears to be a settled principle, and not contested by the counsel on the part of the defendant, that when the witnesses to an instrument are dead, their hand-writing maybe proved. I cannot discover the distinction between such a case, and the one now before us. The witness is without the jurisdiction of the court, and absent in foreign parts, so that it is not in the power of the party to procure his attendance. The cases adduced, do not establish a contrary doctrine. At most, it appears, that no fixed rule, for some time, existed on this subject in England. The argument that frauds may be practised, applies with greater force, where the witnesses are dead. In cases like the present, a better opportunity for detection is afforded. The witness might afterwards return, and the whole transaction be more readily brought home to the party guilty of the fraud. I think the case of Mott v. Dougherty, (1 Johns. Cases, 230.) establishes the law on this subject. The proof" of the hand-writing of a deceased witness, was deemed sufficient; andón that occasion the court say, that the cases in support of the rule, are reasonable; that some relate to absent witnesses; but the principle, in all, is the same. The proof, therefore, in this cause, of the hand-writing of the subscribing witness, absent in foreign parts, without proving the obligor’s hand-writing, was sufficient. [468] 2. The possession of the bond, together with the collector’s receipt, I think is competent evidence of the payment of the money. No reasonable account can be given, how the plaintiff obtained the possession of it, without the previous fact of payment; and connecting with it, the circumstance that the collector would be liable on this receipt, for the amount, to the United States, it must be deemed sufficient, at least, in the first instance. 3. The next point is, that the plaintiff became surety on the credit of Daniel Parker, and not of the defendant. No right existed in the plaintiff to charge Daniel Parker with the amount of the duties. It appears by the bond, that the plaintiff became surety for the defendant; and a subsequent assumption by Parker to pay the amount does not appear. If such an arrangement had been actually made, or the amount had been paid by him to the plaintiff, this would have destroyed the defendant’s liability, and he might have availed himself of it, in his defence. The decision of this court, in thé case of Tom v. Goodrich, (2 Johns. Pep. 213.) settles this point. Barber, one of the partners, executed bonds, to the United States, for duties on goods imported, on account of the copartnership, and as their property, and Tom became surety in the bond. The court established this principle; that the claim of the United States against the copartnership became extinguished by the bond of the individual partner, who was alone responsible, and that the surety, who had paid the money, had a right of action against the- partner only, who had signed the bond. 4. As to the objection, that the evidence of the acknowledgment of the debt was not sufficient to take it out of the statute of limitations : [469] It is now generally received as law, that if a patty acknowledges a debt to be unpaid, it is such a waiver of the protection of the statute, as to repel the presumption of payment, being a recognition of the former liability. In the case of Heyling v. Hastings,* the defendant denied that he bought the goods, but said, “ prove it, and I will pay you.” This conditional promise was deemed sufficient to take it out of the statute. In the present case, the defendant said, the debt ought to be paid, and mentioned eighteen months, as the time he wanted for payment. This is a promise, sufficient tb make him liable. The declaration that he would overlook the papers, and that it was a transaction of a long standing, does not alter the case. The court are of opinion, that the motion for a new trial must be refused. Rule refused. Footnotes [*] 1 Salk. 29.