Bound v. Lathrop

Hosmer, Ch. J. At the trial of this cause before the court below, evidence was exhibited to prove, that Daniel Sampson, one of the makers of the note in suit, within six years next before the commencement of the plaintiff’s action, acknowledged it to be justly due. The legal effect of this testimony, by reason of a disagreement between the judges, on the point, was not declared to the jury; but from the verdict it is indisputable, that they considered it to be a waiver of the statute of limitations. If they assumed the principle of law correctly, no error has intervened. It is well established, by a course of decisions, that an acknowledgment of the existence of the debt, within six years before the suit is brought upon it, unaccompanied with a protestation against making payment, is evidence sufficient for the jury to presume a new promise, and repels the statute of limitations. Lord v. Shaler, 3 Conn. Rep. 131. Halliday v. Ward, 3 Campb. 32., and the cases in the note to Howe's edition. And whether the recognition of debt was before six years had elapsed after the cause of action arose, or afterwards, is of no consequence, as it is the uniform effect of it, to subvert the principle of presumed payment, the basis on which the statute is founded. An admission of debt by one copartner, during the continuance of the partnership, or by one joint contractor in relation to the contract, is competent proof against all. 1 Phill. Ev. 72, 3. The King v. Hardwick, 11 East, 589. Vicary’s case, Gilbert's Ev. 1.—Lucas & al. v. De la Cour, 1 Maule & Selwyn 249. Wood v. Braddick, 1 Taunt. 103. Grant v. Jackson, Peake’s Rep. 203. Walden v. Sherburne, 15 Johns. Rep. [339] 409. The declarations of a joint contractor, in respect of the contract entered into, are equally admissible, as those of a partner; for in regard to the joint debt, they have placed themselves, virtually, in this relation. Bostwick v. Lewis, 1 Day 33. Howard v. Cobb, 3 Day 309. Whitcomb v. Whiting, Doug. 629. Jackson v. Fairbank, 2 Hen. Bla. 340. It is unnecessary to enter further into the argument, as the point before the court, so far from possessing novelty, has received frequent and uniform determinations. In Whitcomb v. Whiting, Doug. 629. decided as far back as the year 1781, it was adjudged, that the acknowledgment of one out of several makers of a joint and several promissory note, takes it out of the statute of limitations, as against the others. “Payment by one,” said Lord Mansfield, “is payment for all; the one acting, virtually, as agent for the rest; and in the same manner, an admission by one, is an admission by all; and the law raises the promise to pay, when the debt is admitted to be due.” The point was afterwards determined, in the same manner, in Jackson v. Fairbank, 2 Hen. Bla. 340. and it is entirely at rest in Westminster-Hall. In the state of New-York, a similar determination was made, in Smith v. Ludlow, 6 Johns. Rep. 267. and the adjudication was followed up in the recent case of Johnson v. Beardslee, 15 Johns. Rep. 3. And although the same decision was not directly made in Clementson v. Williams, 8 Cranch 72. it is fairly to be implied; the principle not having been questioned by the court, but the acknowledgment being declared to be insufficient. Not a determination has been made, so far as my knowledge extends, impugning the principle of the decisions before-mentioned, except the ancient case of Bland v. Haselrig, 2 Ventris 151. adjudged in 1 & 2 of William & Mary; which case was overruled in Whitcomb v. Whiting, and since has been uniformly considered not to be law. The case under discussion was determined correctly; and there is no error in the decision. The other Judges were of the same opinion. Judgment to be affirmed.