Bradley v. Briggs

The opinion of the court was delivered by Bennett, J. Under the issue of payment, the defendants rely upon the presumption arising from the non-production of the pluries execution. We think, that the record of the proceedings in chancery was properly admitted, at least under that issue. The present suit was commenced less than eight years from the time the injunction was granted, which was the twenty second of July, 1839. The pluries execution was issued the twenty seventh day of March, 1839, and went into the hands of the proper officer to execute. The sixty days had run, before the injunction was granted; and the obtaining the injunction was an implied admission, that the judgment had not then been paid; and after that, the collection was stayed by the injunction. This, we think, effectually rebuts any presumption of payment, arising from the non-production of the execution. We also think, that the county court were right in holding that the evidence was sufficient to avoid the effect of the statute of limitations. Though the injunction probably would not have the effect to stay the running of the statute,'especially as it would not have been in contempt of the court of chancery, to have at any time instituted a suit on the judgment, yet we think, that the statements in the bill are a sufficient answer to the statute. It purports to have been signed by both Briggs and Chandler; and it is stated, that they informed Pierce, while the suit was pending, that they could not legally resist the payment of the claim. It passed into judgment, as they state in their bill, and there is no complaint as to the propriety or justice of the judgment. They then state, that they are liable to pay the judgment twice, by reason of the pendency of the trustee suit, unless the court of chancery shall interfere; and to prevent this, they seek the aid of that court. We think this is a full and explicit implied admission, that the debt was due; and there is noth [98] ing in the case, to prevent the law from raising a promise to pay. There is nothing, which manifests an unwillingness to pay the debt once. All that the orators ask is to be relieved from the hazard of paying it twice; and the law will raise the promise to pay it to the one, who shall be entitled to it. It is said, that more than six years had run from the time the bill in chancery was prayed out, before the present suit was commenced, though less than eight years. In the case of Gailer v. Grinnel, 2 Aik. 349, it was adjudged sufficient, to prove a promise within eight years. Besides, we might well regard the acts of the defendants, asa republication of the facts stated in their bill, so often as they made it the ground of judicial proceeding. Though the signature of Briggs to the bill was only proved in the county court, yet it purports to have been sworn to by both of the orators, and it must be treated as a joint statement made by both of them. Consequently the question, whether the admission of Briggs alone would remove the statute bar in this case, it being a judgment, does not arise. The result must be an affirmance of the judgment of the county court.