Austin v. Bostwick

Daggett, Ch. J. The acknowledgment of Bostwick, one of the two defendants, was sufficient evidence against him ; and there being nothing else in the case, this wmuld doubtless remove the bar created by the statute of limitations, and render him liable. Gilbert, the other defendant, and the co-partner with Bostwick,contended on the trial, that the acknowledgment of Bostwick, under the circumstances of his bankruptcy and the co-partnership being dissolved, laid no foundation for a new promise, which, it was insisted, must be proved, to warrant a recovery. He further contended, that his own dc clarations could not have this effect, for two reasons: first, because they were no evidence of a promise to pay the debt; secondly, because they were not made simultaneously with any declaration of Bostwick, and therefore, they couldjfhave [509] no operation in the case, to create a joint promise ; and further, they were made before the statute had attached upon the debt. 1. In relation to the admission of the acknowledgment of Bostwick, after the dissolution of the co-partnership, and when he was a bankrupt, this court expressed its opinion, very decidedly, in the case of Coit v. Tracy & al. 8 Conn. Rep. 268. Such testimony is always admissible, coming from a party to the record. What it proves, is another and different question. If from other facts it appears, that such testimony is given, by the party, with a design to fix a liability on another, it will weigh little. If, as in this ease, it come honestly, and will operate against him who makes it, there is no ground for considering it as destitute of weight. 2. Did the defendants each acknowledge the debt due 1 That Bostwick did, is not denied or doubted ; and there is as little ground to say, that Gilbert did not. He said, it was one of the old co-partnership debts ; they ought to do with it as the other creditors had done — accept 10 or 15 cents on the dollar — he ivould pay that, at any time. If by this language the debt is not admitted to be due, it may be difficult to find words to express the idea. Every one must understand the defendant as saying “ the debt is due — I will pay a portion of it, as I have of the other partnership debts.” The recent examination of this question, by this court, in several cases, renders it quite unnecessary to cite authorities, or go into a course of reasoning, to shew, that the recognition of a debt as originally just, and still due, is sufficient to remove the bar created by the statute of limitations. Lord & al. v. Shaler, 3 Conn. Rep. 131. Bound & al. v. Lathrop, 4 Conn. Rep. 336. Marshall v. Dalliber, 5 Conn. Rep. 480. Be Forest v. Hunt, 8 Conn. Rep. 179. It is believed, that the whole course of decisions is to that effect. It is again contended, that as Gilbert’s declarations were made before the statute had attached, there was no bar to be removed. It may be sufficient to reply, that he then recognized the debt; and if so, the statute would not attach upon it until the lapse of six years thereafter. Has it not been undoubted law since statutes of limitation have been in force, that the payment of interest prevents the running of the statute, and also does away the presumption of payment of a [510] Rond, by the lapse of twenty years ? A bond eighteen years old is kept alive twenty years longer, by the payment of interest; and that simply because the debt is thus recognized. On this principle, then, the statute never did attach upon thi; book debt, as it respects Gilbert; and as it respects Bostwick also, it may well be doubted, since the case of Bound & al. v. Lathrop, 4 Conn. Rep. 336., if this debt was ever barred In that case, it was decided, that the acknowledgment of on< joint promisor took the case out of the statute; and so is the well known case of Whitcomb v. Whiting, Doug. 652. It is further said, that there is no joint act of the defendants. Nor is it at all necessary there should be. A note barred by the statute of limitations was presented, on the 1st of January last, to A. B., one of the promisors. He acknowledges it due. On the 1st of July last, it was presented to C. D., the other promisor. He too declares it due. Has not each of them waived the benefit of the statute ; and will not thfe law compel them to pay it ? Had a forged note been so presented and recognized, they would have been holden to pay it. I am well satisfied, that the motion for a new trial ought t be denied. The other Judges were of the same opinion. New trial not to be granted.