Fairbanks v. Dawson

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Field, J., dissented. The defendants jointly and severally executed their promissory note to plaintiffs, payable on demand, with interest, and dated April 16, 1853. On the sixth day of October, 1853, Pat[91]terson paid the sum of fifty dollars upon the note. C-Suit w&s brought upon the note, May 20,1857, and the defendants ple^tde’d the Statute of Limitations. The Court below held the plea good, and gave judgment for the defendants accordingly, from which judgment the plaintiffs appealed to this Court.

The facts being admitted, the case presents two questions: first, whether a part payment, made before the time limited has expired, will take the case out of the statute; and second, whether the part payment made by one joint and several maker will affect the other.

The thirty-first section of our Statute of Limitations provides, that “No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing signed by the party to be charged thereby.” Is a part payment included within the words “ acknowledgment or promise ?”

Before the passage of Lord Tenterden’s Act, (9 Geo. IT, chap. 14,) a verbal admission of the debt within the time limited by the statute, was held in England to be sufficient to avoid the act. It was said by Tindal, C. J., in Hayden v. Williams, (7 Bing., 163, 166,) that the statute “ did not intend to make any alteration in tbe legal construction to be put upon acknowledgments made by defendants, but merely to require a different mode of proof—substituting the certain evidence of a writing, signed by the party chargeable, for the insecure and precarious testimony to be derived from the memory of witnesses.”

At an early period after the passage of the English Statute of Limitations, (21 James I, chap. 16,) an impression prevailed, that the statute was not to be favored; and, accordingly, a very slight acknowledgment, proved by as slight testimony, was permitted to overcome the statute. (Parson’s Mercantile Law, 233; 10 Barb. S. 0., 568.) But the modern cases upon this subject have established the rule, that to take a ease out of the operation of the statute, there must have been either an express promise to pay, or an admission of the debt in terms so distinct as that a promise might reasonably be inferred therefrom. If, however, the admission was accompanied by qualifying words, then it would not amount to a promise. (Chitty on Con., 712-714.)