Briscoe v. Anketell

Mr. Justice Handy delivered the opinion of the court. On the 30th day of September, 1846, the defendant in error brought this action in the circuit court of Claiborne county, against Andrew B. Logan, "William Briscoe, and Parmenas Briscoe, upon three joint and several promissory notes, executed by them; the first of which had become due on the 7-10 February, 1839, the second on the 7-10 February, 1839, and the third on the 7-10 February, 1840. The defence was founded on the statute of limitations of six years. On the trial, at April term, 1853, the plaintiff read in evidence the notes sued on, and introduced, as a witness, John Murdock, who testified that a few days or weeks after the first February, 1842, he furnished the defendant, Logan, with a state — 370 — ment of the amount due on the notes, which he admitted to be just; that afterwards, in the winter of 1842 and 1843, witness applied to Logan for the balance due on the notes, and Logan promised to pay it in about two weeks from that time, and admitted a balance to be due. The defendants objected to this evidence: 1st. Because the admissions and promises of Logan were not evidence against the other makers of the notes; and, 2d. Because the alleged promises and ■ admissions were not made upon presentation of the notes to Logan at the time; which objection was overruled, and the evidence permitted to go to the jury; and the defendants excepted. Logan died pending the suit, and it abated as to him. At the instance of the plaintiff the court gave the following instruction to the jury: — “ If the jury believe, from the evidence, that within six years before the institution of this suit, Logan, one of the makers of the notes, made payment thereon to John Murdock, as agent of the plaintiff, and admitted that a balance was due upon the notes which he promised to pay, such promise is sufficient to take the case out of the statute of limitations, as to the defendants,” (William and Parmenas Briscoe). And the following instruction asked by the defendants was refused: — “ That unless the jury believe, from the evidence, that the notes sued on were presented to Logan at the times testified to by Mr. Murdock, then Logan’s admissions, made at said times, are not sufficient to take the case out of the statute of limitations.” The verdict and judgment being for the plaintiff, the defendants have prosecuted this writ of error. * The points made in the court below present the question here, whether the promises and acknowledgments made by Logan are sufficient to charge the comakers of the notes: 1st. In reference to the' necessity of presentation at the time of the promise; and, 2d. In reference to the binding force of the promise of Logan upon his comakers of the note. Both of these points were presented in the case of Foute et al. v. Bacon, 24 Miss. R. 156, and it was there held, that under the — 371 — provisions of the 16th section of the act of 1844, a promise or acknowledgment was not sufficient to prevent the running of the statute, unless made in writing or on presentation of the claim sued on; and, 2d. That the promise or acknowledgment of one of several makers would not charge the comakers. That case is conclusive, both against the admissibility and sufficiency of the evidence in this case. But it may not be improper to consider some objections that are presented to the soundness of this view of the subject, under the facts of this case. First. It is said that as the new promise in this case was made before the passage of the act of 1844, that act cannot be interpreted to have a retrospective effect, and apply to defeat rights which were vested before its enactment. It is too well settled to admit of question at the present day, that statutes of limitation pertain to the remedy and not to the essence of the contract; and that it is within the power of the State legislatures to regulate the remedy and modes of proceeding in relation to past as well as future contracts. This power is subject only to the restriction, that it cannot be exercised so as to take away all remedy upon the contract, or to impose upon its enforcement new burdens and restrictions which materially impair the value and benefit of the contract. Bronson v. Kinzie, 1 How. (U. S.) 315 ; McCracken v. Hayward, 2 Ib. 612. And accordingly it has been held to be within the undoubted competency of the State legislatures, to shorten the periods of limitation of actions, to change existing rules of evidence, and to prescribe new rules of evidence and judicial procedure, all to affect both past and future rights of action. Sturgis v. Crowninshield, 4 Wheat. Jackson v. Lamphire, 3 Peters, R. 290; 1 How. R. 315. Such acts are held to be invalid when they deprive the party of all remedy, by changing the period of limitation, or destroying the validity of the proof on which his claim rested, and rendering it impossible to establish his right. In England, it has been held that the statute of limitations, known as Lord Tenterden’s act, which contains provisions analogous to the statute under consideration, applies to a parol acknowledgment made before the passage of the act. Towler — 372 — v. Chatterton, 6 Bing. 258, (19 Eng. C. L. Rep. 76); Ansell v. Ansell, 3 Carr. & Payne, R. 563, (14 Eng. C. L. R. 451). And it has also been held that the statute did not make any alteration in the legal construction to be put upon acknowledgments or promises made by defendants, but merely required a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses. Haydon v. Williams, 7 Bing. R. 163, (20 Eng. C. L. Rep. 86). Applying these principles to the facts of this case, it appears that two of the notes sued upon were not barred until February, 1845, and the third was not barred until February, 1846, so that, without the right of action being interfered with by the act of 1844, the plaintiff had nearly twelve months as to two of the notes, and nearly two years as to the third, to bring suit. He had, therefore, ample time to bring his suit, as his right of action stood upon his notes, before they could come under the operation of the act of 1844, and it cannot be said that he was deprived of all remedy by the provisions of that act. It cannot be said that the new promise constituted a new and valid contract which was available to the plaintiff' under the law as it then stood, and that the act of 1844 impaired the obligation of that contract. For, in the first place, it is settled that, as the law was understood to be prior to that act, the new promise, being made before the notes were barred by the statute then existing, did not create a new and substantive contract, but was evidence merely of an existing liability. Parham v. Raynal, 2 Bing. R. 306, (9 Eng. C. L. Rep. 413); Bell v. Morrison, 1 Peters, R. 360; Ilsley v. Jewett, 3 Met. R. 444. And the action should be brought on the original contract. 16 East, R. 420; Upton v. Else, 12 Moore, R. 303, (22 Eng. C. L. R. 451). Secondly. It was competent, under the rules above stated, for the legislature to introduce a new rule of evidence affecting contracts then existing, provided it did not debar the plaintiff of all remedy upon his contract; and it is above shown that he had ample time to pursue his remedy before the notes were affected by the new rule of evidence established by the act of 1844. — 373 — But it may be urged, that as the new promise in this case was made before the notes were barred by the statute, it was not a promise to revive a cause of action already barred, but to continue and give new vigor to one then in force, and, therefore, is not within the statute. The language of the statute is, “ No promise or acknowledgment, either express or implied, shall operate to revive at law any action, or cause of action, from the bar and limitations contained in the provisions of this act, unless such promise or acknowledgment be in writing and signed by the party to be charged thereby: Provided, however, that the promise or acknowledgment, to save the bar, may be made without writing, if it be proved that the very claim sued on was presented and acknowledged to be due and unpaid.” Hutch. Code, 832, § 16. It is manifest that the language here employed is not very precise or even accurate. The term “ revive,” in its strict import, would apply to demands already barred. But the language, “ no promise shall operate to revive any action from the bar and limitations,” &c., is too loose to justify the application of critical rules in interpreting it. The last clause of the same section provides that “ the promise or acknowledgment to save the bar,” &c., “ may be made without writing,” &c., which language could properly apply only to claims not already barred. Yet it has reference to the same character of demands embraced in the previous part of the section. In view of the entire section, we think it was the manifest intention of the legislature to establish a new rule of evidence, whether to revive a cause of action already barred, or to continue one not barred. Secondly. It is insisted that the new promise was sufficient to take the case out of the statute, because the act of 1844 extended only to “ the bar and limitations contained in the provisions of that act,” and the new promise was relied upon to remove the bar created by the act of 1822. The period of limitation as to actions on promissory notes is the same in both acts. It was doubtless the intention of the legislature, that the new rules established in the act should apply, so far as could be, to causes of action which had already — 374 — commenced to tun ; and it is expressly provided in the 18th section, that the act should not stop the running of the limitations contained in any other act, when the same had commenced before its passage. It is, therefore, manifest that the limitation upon the notes in this suit did not commence running anew under the provisions Of the act :of 1844, but that it continued to fun from the maturity of the notes for the period of six years, and that, during that time and afterwards, they became subject to the provisions of that statute. And this rule would apply to all causes of action existing at the time of the passage of the act, except in eases where its application would deprive the plaintiff of all remedy, by shortening the period of limitation so as to cut off all right of action, or by destroying the validity of the evidence upon which the establishment of his demand depended. Under these views of the subjéet, the court below erred in admitting the evidence of Murdock, in refusing the instruction asked by the defendants, and in granting that asked by the plaintiff. The judgment is, therefore, reversed, and the case remanded for a new trial.