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" Child, 1 Ves, 344. 15 Vin. Ab. tit. Limitation, 103, pl. 14. “ Wallis vs Scott, 1 Stra. 88.
“ The Court. No doubt interest might be demanded from the " date of the instrument of writing; and of course it became due “ and payable on the day of its date.
JUDGMENT AFFIRMED." The Act of Limitations begins to operate as a bar from the time the cause of action arises, and not from the time of making the promise. Murdock vs. Winter's Admr. 1 Harris & Gill's Rep. 471.
CHAPTER 6. Page 118, Note [1.] In the case of Clowes vs. Dickenson & Al. (On Appeal. 8 Cowen's Rep. 328,) it was Held, That a party may appeal from a final decree of the Court of Chancery, at any time within five years, though he have accepted the money awarded by the Decree. SPENCER, Senator, in delivering his Opinion, (page 331.) said ; “ A defendant, in a judgment of the supreme
court, has five years to bring error, although he might bave ci
stayed the collection of the judgment; and a defendant in chan“ cery has the same time for appeal, although he may have been
obliged to pay the amount of the decree. It appears to me " that these rights should be reciprocal ; and as the defendant
may bring error or may appeal, notwithstanding he has paid the “ judgment or decree, I think the plaintiff has the same right, not
withstanding his acceptance of such payment. I am, therefore, " of opinion that the motion be denied ; but without costs to “either party." And Colden, Senator, (page 332.) said ; “ As * to the merits of this application, I cannot see that there is any " thing in the lapse of time. The law has fixed the limitation at * 5 years. Either party may prosecute an appeal at any time " within this period. He may take the full indulgence of the law. “ As to the effect of payment, I had occasion to express my views “ in Dyett v. Pendleton; and I feel confirmed, on reflection, that “no matter how the money is paid or collected, this cannot affect " the right to bring error or appeal. Every case cited on that oc" casion, where the courts have interfered with the writ of error, " was either of express stipulation, or where the proceeding was “most palpably unfounded and vexatious. Here is no agreement " or stipulation pretended.”
The People ex relat. Phelps vs. Delaware Common Pleas. (2 Wend. Rep. 256.) " Motion for a Mandamus. A plaintiff in a
suit which had been carried up by appeal to the Delaware common pleas, was nonsuited. Five years afterwards, application
was made to the common pleas to quash the appeal for a defect " in the appeal bond, which was refused. A mandamus was now " asked for, directing a vacatur of the rule refusing the applica" tion, and ordering the appeal to be quashed.
By the Court, SUTHERLAND, J. The bond was palpably bad, " and were the proceedings still pendente lite in the common
pleas, an alternative mandamus would be awarded. But after " the lapse of five years subsequent to the final decision of the cause, the court deem it inexpedient to interfere.
“ Motion denied." The People, ex relat. Beach vs. Seneca Common Pleas. (? Wend. Rep. 264.) Motion for a Mandamus ; " By the Court, “ SUTHERLAND, Je The motion is denied. Here has been a de“lay of a year since the happening of the errors complained of, " and the fact of the party's having been advised that his remedy “ was by writ of error, furnishes no excuse. This court will not " by mandamus disturb proceedings in which parties have so long " acquiesced."
CHAPTER 9. Page 189, Note [2.] - Where a declaration sets forth a claim " or demand of the plaintiff against the intestate of the defendant, " and the intestate's promise to pay it, a reference of such demand, * by his administrator, (the defendant,) and the plaintiff, to arbi"trators-an award, in pursuance of such reference, for a specific "sum in favour of the latter-a promise by the defendant, as ad. “ ministrator, to pay it, and charges a breach in the nonpayment " of that sum, it contains matter enough to warrant a judgment
against the defendant in his character of administrator. The "plaintiff is under no necessity to aver asssets in the hands of the *** defendant, as administrator, sufficient to pay his debt.
" This peculiar mode of declaring originated in a plan to save " the Statute of Limitations, and proceeds upon the ground, that “ it neither pledges the personal responsibility of the administra"tor after verdict, nor deprives him of any defence he could have
had, if he had been charged with an assumpsit by his intestate ; " and with these qualifications, it will be received and adopted." Gile's Adm'r. &c. vs. Perryman, (1 Harris & Gill's Rep. 164.)
Page 188, Notes [1.] [2.] & [3.] ; page 190, notes (1.] & [3.] page 191, note [1.]
In the case of Oliver vs. Gray, (1 Harris & Gill's Rep. 204, 215.) recently decided in the COURT OF APPEALS of Maryland, [June, 1827.) Buchanan, Ch. J. who delivered the Opinion of the Court, after a critical examination of the principal English and American decisions on the subject, said: "The only difference “ between the act of limitations in this state, and the Statute of “ James is, that here the limitation is but three years; and in this "state, the rule prevailing in England, that an ackowledgment of "the debt by the defendant within the time prescribed for bring
ing the suit, is sufficient to take the case out of the statute, has "been adopted. In Barncy vs. Smith, 4 Harr. & Johns. 485.
"the venerable man who then presided, Judge Chase, said " the “ act of limitations does not operate to extinguish the debt, but “ to bar the remedy. The act of limitations proceeds upon the “ principle, that from length of time a presumption is created, that “the debt has been paid, and the debtor is deprived of his proof - by the death of his witnesses, or the loss of receipts. It is the
design of the act of limitations to protect and shield debtors “ in such a situation ; and consistent with this principle and this “ view, the decisions have been made, that the acknowledgment “ or admission of the debt will take the case out of the act of lim“itations; because, if the money is still due and owing, the de. “ fendant has not suffered from ihe lapse of time, nor has any in“ convenience resulted to him therefrom." And again, in another
part of his opinion, he says “the acknowledgment to the sur“ viving partner saves and preserves the remedy in the survivor, có and avoids the bar by the act of limitations, It does not create
a new assumpsit, but is a saving of the remedy on the origival “ promise.” We, therefore, are not called upon now for the first “time to give a construction to that act; that task has been per “ formed by oibers, at whose bands we have received it, with " their interpretation of it, from which, if we were disposed to do " so, we should not feel ourselves at liberty to depart.
Perhaps it would have been better, if instead of endeavouring to rescue particular cases out of its operation, the letter of “the statute had been strictly adhered to; if the original debt " had always been considered as extinguished, and the moral ob“ ligation, treated as a sufficient consideration for an express pro6 mise to pay, on which to found an action. But according to all " the cases, (for in this at least they agree,) the debt is considered * as not extinguished, and the defendant can only avail himself of “ the statute in England, and act of assembly here, by pleading
it; which, if he omits to do, it is held to be a waiver of its bene• fit, and the plaintiff may recover on the general issue, though " the debt should appear by the declaration to be of longer stand“ing than the limited period. This settled construction has pro“duced all the difficulties and discrepancies complained of; but " it is a construction which is not now to be shaken by us; nor “ on the other hand should its operation be extended further than - it has already gone.
“ Taking the act of limitations, then, as we find it, operating
upon the remedy only, and not as extinguishing the debt; and “ feeling the necessity for a more definite and certain understand“ing of the effect of the adopted construction, than can easily be “ collected from particular cases, we will endeavour, not to re" concile the various decisions that are to be found in the books
on this subject, but to lay down some general rules for the prac, “tical application of the principles they establish ; that the act “ does not extinguish the debt, but only bars the remedy, and that
an acknowledgment by the defendant of the debt, or a promise " to pay it within the time prescribed, is sufficient to revive the is action.
" First, then, the suit is to be brought on the original cause of " action, and not on the new promise or acknowledgment, wbich
only has the effect to restore the remedy; which is pot only ac
cording to the common practice, but is directly and strongly as"serted in Barney vs. Smith.
Second. It need not be absolute and unconditional, but a con“ ditional promise is sufficient ; and in such case, it is incumbent “on the plaintiff to show at the trial either a performance of the
condition, or a readiness to perform it; as if the words be, prove your debt, and I will pay you, which is an express promise to
pay, on condition that the debt is proved. Heyling vs. Hast"ings, 1 Ld. Raymond, 389. Trueman vs. Fenton, 2 Cowper, “ 548. Davies vs. Smith, 4 Espinasse Rep. 36. Loweth vs. “ Fothergill, 4 Camp. Rep. 185. Bush vs. Barnard, 8 Johns.
Rep. 407. These cases furnish different examples of condition. " al promises to pay, each of which was held sufficient to take “ the case out of the statute.
“ Third. An acknowledgment, to take the case out of the act “ of limitations, must be of a present subsisting debt, unaccompa"nied by any qualification or declarations, which, if true, would
exempt the defendant from a moral obligation to pay. For the
law will not raise an assumpsit, or imply a promise to pay, what " in equity and good conscience a man is not bound to pay. As if " the defendant admits the debt, but at the same time resists the
payment of it by alleging that he has a set-off against it, and " and that the plaintiff owes bim more money; which virtually "amounts to a denial of his liability, and a refusal to pay any part " of it, on grounds furnishing a sufficient moral excuse for not "paying it. And indeed, taking the whole of the acknowledg. * ment together, (which must always be done,) is in effect equiv“ alent to a declaration that the debt is discharged. If it were “ otherwise, and the plaintiff was permitted to avail himself of the " acknowledgment of the debt, and to reject the qualification, in" justice would always be done where the set-off, claimed by the defendant, should be itself barred by the act, or he should be in want of testimony sufficient to support it. Or, if he admits the receipt of money, and that it has not been paid, but claims it as a gift ; which, if true, would exempt him from any liability to pay. Or,
if on being called upon, the party says be has paid the debt, and " will furnish the receipt, but fails to do so, this will not be suffi“cient to charge him ; but is the very case intended to be pro"*'vided for by the act, the case of a man who is supposed to have
lost his evidence of payment.
“ Fourth. An acknowledgment of the debt, with a naked re' fusal to pay, or a refusal accompanied with an excuse for not
“ paying it, which in itself implies an admission that the debt re“mains due, and furnishes no real objection to the payment of it, s is sufficient.
“ Fifth. Any unqualified acknowledgment of a present sub“ sisting debt, or acknowledgment, with no other excuse for not “ paying it than a reliance on the bar created by the act of limita
tions, is sufficient to take it out of the act. Clarke vs. Brad“shaw & Coghlan, 3 Esp. Rep. 155. Bryan vs. Horseman, 4 “ East, 599. Evans, in the notes to his translation of Pothier
on Obligations, suggests to those whose claims are barred by " the statute, and who wish to obtain an acknowledgment of the " subsistence of the debt, the utility of filing a bill of discovery, " and adds,' if the subsistence of the debt is admitted, and without “ perjury it cannot be denied, it will not, if there is any
consistency of decision, be of any avail to add a claim to the protection or of the statute.'
" The act of limitations, according to the received construction, proceeds upon the supposition, that from length of time the debt " is paid, and was only intended to protect a party where the pre“ sumption arising from lapse of time is, either, that the debt bas “ been discharged, or never existed, and not to protect him from a " debt acknowledged by himself to be still due and unpaid, with no “ other excuse for not paying it than the supposed bar created by " the act. When, therefore, a party admits the debt to be due, " but standing upon the act of limitations alone, in the same " breath refuses to pay it, he admits a case, to which the act, ac“ cording to its spirit and reason, does not apply, under the inter“pretation given to it, and his resusal cannot avail him. But the
continuing existence of the debt continues and carries with it " the implied assumpsit that the law raises, which is not rebutted " by bis refusal to pay. Hence the very common use in the books “ of the terms “ takes the case out of the statute of limitations ;' " that is, that it is a case not embraced by the statute.
" Sixth. The acknowledgment of the debt may be in whole or in part.
“ Seventh. It is sufficient if it be after the bringing of the 16 suit. Yea vs. Fouraker, 2 Burr. 1099. Which could not regu. “ larly be if it stood upon the footing alone of evidence only of a “ new promise, the replication being assumpsit infra tres annos “ before the bringing of the suit, and confining the issue to a time "' within that period; so that an ackoowledgment, made after the " bringing of the suit, would not be within the issue. The issue, “therefore, in such a case, must be sustained on the part of the
plaintiff, on the idea of an implied promise, continuing and run“ning with the old debt acknowledged to be still due.
Eighth. An admission that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, that the debt once existed.