De Forest v. Hunt

Hosmer, Ch. J. The first question is, whether the evidence adduced by the plaintiffs to remove the bar of the statute of limitations, was admissible. The objection to its admissibility was not much pressed, by the counsel, in the argument. The evidence at least conduced to prove the fact for which it was adduced, and of consequence, was competent to be received and weighed by the jury. Gibson v. Hunter, 2 H. Bla. 288. The remaining and only material enquiry, is, whether the plaintiffs’ debt was so recognized as to remove the bar. On recurrence to the evidence, it is very clear, the defendant not only acknowledged, that the plaintiffs had a demand against him, but recognized a precise debt. A few words will render this unquestionable. The plaintiffs, by letter, claimed a debt; and so far from denying this claim, it was said by the defendant, that he was extremely song to say, the prospect of present payment was not very flattering, as it was utterly out of his power to pay any thing. In what does this fall short of an unquestionable acknowledgment that something was due? If the plaintiffs had no debt against the defendant, he would have said so. This I infer on the unquestionable ground, that he would act, as far as he honestly could, conformably with his interest, and as observation and experience show that mankind generally do act on similar occasions. Nor is this all. The defendant affirms, that [184] he is extremely sorry; and for what? Because there was no prospect of his paying the plaintiffs' demand against him. Why this expression of deep regret? Was it because he owed the plaintiffs nothing? The supposition is absurd. If the debt demanded was not due, it would have been to the defendant matter of joy and self-gratulation. On the contrary, the declaration speaks this plain language: The debt you demand is justly your due; and I deeply regret my inability to pay it. In addition to this, it is indisputable, that the acknowedgment was of a precise sum. This must be admitted, if the defendant, before the writing of his letter, had received the plaintiffs’ account stating the balance due. That he had received it, clearly appears, by the most satisfactory presumption. In the plaintiffs’ letter, it is said, that some months since, they had transmitted their account, which, according to the deposition of Gould, was sent to the defendant, with the balance stated; and the defendant was requested to inform the plaintiffs, whether he found it to be correct. To this part of the letter no reply is made, except that the defendant regrets, that he is unable to pay the debt. It is justly said, by Starkie, in his treatise on the Law of Evidence, (vol. 2. p. 37.) and such was the law declared by Lord Tenterden, in Steel v. Prickett & al. 2 Stark. Ca. 471., that in general, an admission may be presumed, not only from the declaration of a party, but even from his acquiescence in silence; as for instance, where the existence of a debt, or of the particular right, has been asserted in his presence, and he has not contradicted it. It is a legal presumption, then, deduced from the defendant’s silence to the affirmation of the plaintiffs in their letter, concerning the transmission of their account, that it had been received; that the balance claimed was before the defendant, when he wrote his letter; and that his acknowledgment was not of a debt indefinitely, but of the precise debt claimed. This, however, is immaterial; for a general acknowledgment of a subsisting indebtedness, without specifying the amount of the debt or balance, is sufficient to take a case out of the statute of limitations. Lord v. Harvey, 3 Conn. Rep. 370. It has been determined, in some cases, although this is not the general current of decisions, that an acknowledgment of indebtedness, coupled with a refusal to pay the debt, is not sufficient to remove the bar of the statute. Danforth v. Culver, 11 Johns. Rep. 146. Jones v. Moore, 5 Binn. 573. Har [185] rison v. Handley, 1 Bibb’s Rep. 443. I do not intend to enter on this question, unnecessary as it is in this case, where there was no protestation against the payment of the debt, or refusal to make payment. Waiving, therefore, the consideration of the point referred to, the established principle of law may be expressed in the following manner. An unqualified and unconditional acknowledgment of a debt as originally just and yet subsisting, removes the bar of the statute of limitations. To this effect are the English determinations on the point in question. (Vid. note to Lord v. Shaler, 3 Conn. Rep. 133. where they are collected.) The same principle was adopted and applied, by this Court, in Lord v. Shaler, 3 Conn. Rep. 131. Lord v. Harvey, 3 Conn. Rep. 370. Bound v. Lathrop, 4 Conn. Rep. 338., Marshall v. Dalliber, 5 Conn. Rep. 480. and Peck v. Botsford, 7 Conn. Rep. 172. To the same effect are the determinations in the state of Massachusetts. Baxter, admr. v. Penniman, 8 Mass. Rep. 133. Fiske v. Needham, 11 Mass. Rep. 452. Brown & al. v. Anderson 13 Mass. Rep. 201. Bangs v. Hall, 2 Pick. 368. In the state of Maine, the same principle has repeatedly been declared. Perley v. Little, 3 Greenl. 97. Porter v. Hill, 4 Greenl. 41. Numerous determinations in the state of New-York recognize the same principle. Danforth v. Culver, 11 Johns. Rep. 146. Smith, admr. v. Ludlow, 6 Johns. Rep. 267. Sands v. Gelstone, 15 Johns. Rep. 511. Martin v. Williams, 17 Johns. Rep. 330. And to the same effect are the determinations of the supreme court of the United States, in Clementson v. Williams, 8 Cranch 72., in Witzell v. Bussard, 11 Wheat. 309. and in Bell v. Morrison, 1 Pet. 351. Indeed, I am not aware, that there exists a diversity on the subject under discussion, except in the state of Kentucky, where it seems to be law, that an express promise, or an express acknowledgment, combined with an assent to pay, are requisite to take a case out of the statute. Harrison v. Handley, 1 Bibb’s Rep. 443. Bell v. Morrison, 1 Pet. 351. The doctrine established in all the cases, sanctions the judge’s charge. On the principle advanced by the English court of King’s Bench, in Lloyd v. Maund, 2 Term Rep. 160. [186] what is an acknowledgment of a debt, is matter to be left to jury. They determined in favour of the plaintiffs ; and ought so to have done. The defendant acknowledged the plaintiffs’ debt to be due, unconditionally and unqualifiedly, upon the soundest construction of his expressions. He went further than this. His inability to pay the debt he extremely regretted; a fact equally proving the justice and the existence of the demand. That it removed the bar of the statute, is too clear to admit of a question. A new trial, therefore, I would not advise. The other Judges were of the same opinion. New trial not to be granted.