Marshall v. Dalliber

Bristol, J. The question presented for consideration in this case, is, whether the evidence offered by the plaintiff was admissible for the purpose of doing away the effect of the statute of limitations ? The principles of law applicable to this question, have been frequently the subject of judicial decision ; and are now settled in the United States, the state of New-York, and our own State, in a manner more conformable to the intent of the legislature than many of the English cases. Clementson v. Williams, 8 Crunch 72. 74. Sands v. Gelston, 15 Johns. Rep. 511. Lord v. Shayler, 3 Conn. Rep. 131. These principles require, that to do away the statute of limitations, a defendant must voluntarily relinquish the protection it was intended to afford, either by an express promise to pay the debt, or by acknowledging that it is due, from which the law raises a promise to pay, and which is tantamount to an express promise. If such are the settled principles, to which our decision must acquiesce, the only remaining inquiry must be, whether the defendant, by his acknowledgment, did admit the continued existence of the original debt, or promise to pay it? This he might [487] do, either in express terms, or by strong implication from other language which he might use. It has not been contended, that the language used by the defendant contained a promise to pay the debt, or an acknowledgment of its justice, either express or implied. On the contrary, the defendant denied his liability, and declared the debt was satisfied, by the services of his wife, while she lived in the family of the testator. Now, whatever doubt may have existed in the decided cases, whether the acknowledgments relied on, did, or did not amount to an admission of the debt, or a promise to pay it, still, such admission or promise, either by the defendant himself, or some othe person referred to by him, has been generally held as absolutely necessary to take a case out of the statute : and the adjudged cases here generally turned upon the true import of the evidence relied on, rather than on any serious doubts respecting the law. But in the present case, there is no doubt relative to the import of the defendant’s admissions ; nor can any inference be made against the defendant, unless his declarations relative to the mode of payment are suffered to be disproved, and what was in fact a denial of the debt on his part, thus converted into an absolute acknowledgment of the debt and a promise to pay it. It is said, however, that if the plaintiff can disprove the mode of payment alleged by the defendant, this will raise a presumption, that the debt is still due ; and be equivalent to a direct acknowledgement of the debt, by the defendant ; and this principle receives considerable countenance from the case of Hellings v. Shaw, 7 Taun.. 608. In delivering his'opinion in that case, Chief Justice Gibbs observes, “ that where a defendant states, not that a debt remained due, but that it is discharged, by particular means, to which he has, with precision, referred himself ; and where he has designated the time and mode so strictly, that the Court can say it is impossible, it had been discharged in any other mode ; there the Court have said, if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground, upon which he professed to rely.” But if the authority of this case were unquestionable, I should think it admitted of much doubt, whether the mode of payment alledged bythe defendant, was disproved or falsified, by the testimony of the plaintiff The evidence of the plaintiff did not disprove the services of the defendant’s wife; or shew [488] that those services had been satisfied, by the testator, in some other way. The services might have been rendered to the testator, and not charged on book, and the defendant might have had a fair claim on the testator for the value of such services. which he recognized ; and he might have agreed, that such services should satisfy the note, although it was dated after such services were rendered. To conclude that the defendant’s language meant nothing but a strict and technical payment, would be absurd. The first answer to this authority, therefore, is, that the special mode of payment alleged by the defendant, was not disproved by the plaintiff’s evidence ; and, of course, there is no implied admission of the debt. This Court, however, are not bound by this precedent ; nor can they properly follow it, unless satisfied of its being reasonable and just. We have looked through the English decisions for the adjudged cases, from which the position of Chief Justice Gibbs is derived ; but we have looked in vain. In the subsequent case of Beale v. Nind, 4 Barn & Ald. 568. the court of King's Bench appear dissatisfied with the positions taken by the Chief Justice of the Common Pleas. Chief Justice Abbott said “ he was by no means satisfied, that it was competent for the plaintiff to falsify what the defendant said as to the demand being paid ;" and Bayley, one of the most learned and accurate judges then on the court, says, “ I am certainly not aware of the cases to which my Lord Chief Justice Gibbs refers, to support that proposition.” In another report of the same case, decided by the Common Pleas, it is said Chief Justice Gibbs “ confined his observation to the case of a defendant claiming his discharge under a written instrument, to which he, with precision, refers.” The weight of English authorities, therefore, is not much in favour of allowing a plaintiff to disprove the special mode of payment alleged by the defendant : and we are satisfied, that whether countenanced by these authorities oi not, it is opposed to principle : andwefeel disinclined to make, fu rther inroads upon a statute, of great public utility ; especially, when judges are constantly lamenting that too many exceptions have been made already. A debt being barred by the statute of limitations, the defend ant is entitled to take advantage of it, unless he consents to relinquish its protection, either expressly, or by evident implication. The truth or falsehood of the defendant’s declaration as to paying the demand, appears to me immaterial to the true point of inquiry, which, in all such cases, should be, whether [489] the defendant has, by an express or implied recognition of the debt, voluntarily renounced the protection of the statute. We think this should depend on the defendant himself, and on his own declarations : not on disproving the truth of these declarations, and thereby converting what was intended as an absolute denial of any indebtedness into an acknowledgement of such debt, and a promise to pay it. It might as well be claimed, if a defendant denied the execution of a note barred by the statute of limitations, and the plaintiff could prove that he executed it, that the defendant had forfeited the protection of the statute. No intention to waive the protection of the statute can be inferred from the declarations of payment made by the defendant, even if those declarations are proved untrue. I am, therefore, of opinion, that a new trial ought to be granted. Hosmer, Ch. J. and Peters and Brainard, Js. were of the same opinion. New trial to be granted.