Bell v. Morrison
26 U.S. 351

Annotate this Case

U.S. Supreme Court

Bell v. Morrison, 26 U.S. 1 Pet. 351 351 (1828)

Bell v. Morrison

26 U.S. (1 Pet.) 351

ERROR TO THE SEVENTH CIRCUIT COURT OF THE

UNITED STATES FOR THE DISTRICT OF KENTUCKY

Syllabus

The authority given by the Act of Congress of 24 September, 1789, chap. 20, to take depositions of witnesses in the absence of the opposite party is in derogation of the rules of the common law, and has always been construed strictly, and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible.

The certificate of the magistrate taking the deposition is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury if all she necessary facts are there sufficiently disclosed.

It should plainly appear from the certificate of the magistrate that all the requisites of the statute have been fully complied with, and no presumption will be admitted to supply any defects in the taking the deposition.

The statute of limitations in Kentucky is substantially the same with the statute of 21 James II, ch. 16, with the exception that it substitutes the term of five years instead of six. The English decisions have therefore been resorted to in this case upon the construction of the statute of Kentucky, and are entitled to great consideration. They cannot be considered as conclusive upon the construction of a statute passed by a state upon a like subject, for this belongs to the local state tribunals, whose rules of interpretation must be presumed to be founded upon a more just and accurate view of their own jurisprudence.

If the doctrines of the Kentucky courts in the construction of a statute of that state are irreconcilable with the English decisions upon a statute in similar terms, this Court, in conformity with its general practice, will follow the local law and administer the same justice which the state court would administer between the same parties.

The statute of limitations, instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it what it was intended, emphatically, to be -- a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten or be incapable of explanation by reason of the death or removal of witnesses.

An exposition of the statute of limitations which is consistent with its true object and import is that expressed by this Court in the case of Wetzell v. Bussard, 11 Wheat. 309, an acknowledgment which will revive the original cause of action, must be unqualified and unconditional -- it must show positively that the debt is due in whole or in port. If it be connected with circumstances which in any manner affect the claim, or if it be conditional, it

"may amount to a new assumpsit, for which the old debt is a sufficient consideration, or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition or a readiness to perform it must be shown."

If the bar of the statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner and be in its terms unequivocal and determinate, and if any conditions are annexed, they ought to be shown to be performed.

Page 26 U. S. 352

If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay; if the expression be equivocal, vague, or indeterminate, leading, to no certain conclusion, but at best to probable inferences which may affect different minds in different ways, they ought not to go to a jury as evidence of a new promise, to revive the, cause of action.

The decisions of the courts of Kentucky giving a construction to the statute of limitations of that state are in accordance with the principles which have been sanctioned by this Court. Those decisions evince a strong disposition of the courts of Kentucky to restrict within very close limits any attempt to revive debts by implied promises resulting from acknowledgments or other confessions by parol. It is the duty of this Court in a case arising in Kentucky to follow out the spirit of those decisions so far as the Court is enabled to gather the principles on which they are founded.

In the construction of local statutes, this Court has been in the habit of following the judgments of local tribunals.

The admission of a party of the existence of an unliquidated account on which something is due to the plaintiff, but no specific balance is admitted and no document produced at the time from which it can be ascertained what the parties understood the balance to be would not, by the courts of Kentucky, be held sufficient to take the case out of the statute and let in the plaintiff to prove aliunde any balance, however large it may be. It is indispensable for the party to prove by independent evidence the extent of the balance due to him before there can arise any promise to pay it as a subsisting debt.

The acknowledgment of a debt by one partner after a dissolution of the co-partnership is not sufficient to take the case out of the statute as to the other partners.

A dissolution of partnership puts an end to the authority of one partner to bind the other; it operates as a revocation of all power to create new contracts, and the right of partners as such, can extend no further than to settle the partnership concerns already existing, and distribute the remaining funds, and this right may be restrained by the delegation of this authority to one partner.

After a dissolution of a partnership, no partner can create a cause of action against the other partners except by a new authority communicated to him for that purpose.

When the statute of limitations has once run against a debt, the cause of action against the partnership is gone.

The case was presented for the consideration of this Court upon a bill of exceptions taken by the plaintiff in error.

An action of assumpsit was instituted against Charles Wilkins, Jonathan Taylor, James Morrison, Anthony Butler, and Isaac White in 1823. The defendants, on 1 March, 1810, by articles of agreement under their respective hands and seals entered into a partnership for the purpose of manufacturing and vending salt at Saline, near the Wabash in the

Page 26 U. S. 353

then Illinois Territory under the firm of Jonathan Taylor & Co., and the object of this suit is the recovery of about $20,000 claimed to be due on the sale and delivery of castings to that value or amount. The evidence of the sale and delivery of the articles and of their value was complete, and the questions which were presented to the court by the record were:

1st. Upon the decision of the circuit court against the admission of a deposition which had been intended to be taken in conformity with the provisions of the Act of Congress of 24 September, 1789, ch. 20, and in reference to the taking of which were was in all respects a compliance with the directions of the act, with the exception that the deposition was not certified to have been reduced to writing by the magistrate or by the deponent in his presence, and

2d. On the exclusion of certain testimony and the validity of the plea of the statute of limitations, upon which plea, the decision of the court having been in favor of the defendants, a verdict and judgment was rendered for them.

All the facts considered as proved in the case and also the written and documentary testimony essential to a full understanding of the case are stated at length in the opinion of the Court, delivered by MR. JUSTICE STORY.

Page 26 U. S. 355

MR. JUSTICE STORY delivered the opinion of the Court.

The original action was brought by the plaintiffs in error against the defendants on 16 August, 1820, to recover the value of certain iron castings sold and delivered to them by the plaintiff. The defendants pleaded non assumpserunt and non assumpserunt within five years, the latter being the time prescribed by the Kentucky statute of limitations in cases of this nature, upon which pleas the parties were at issue, and at the trial a verdict was returned by the jury for the defendants, upon which judgment passed in their favor. A bill of exceptions was taken to certain points ruled by the circuit court at the trial, and the validity of these exceptions has constituted the ground of the argument for the reversal which has been insisted on in this Court.

The first objection urged is the exclusion of the deposition of a Mr. Mockbee which was offered by the plaintiff as testimony in the cause. The reason assigned for the exclusion is that there was no proof by the certificate of the magistrate or otherwise that the deposition was reduced to writing, in the presence of the magistrate. This is a point altogether dependant upon the construction of the Act of Congress of 4 September, 1789, ch. 20, under the authority of which the deposition purports to be taken. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly, and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. The act of Congress provides

"That every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth, and shall

Page 26 U. S. 356

subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition or by the deponent in his presence. And the deposition so taken shall be retained by such magistrate until he deliver the same with his own hand into the court for which they are taken or shall, together with a certificate of the reasons as aforesaid of their being taken and of the notice, if any was given to the adverse party, be by him, the said magistrate, sealed up and directed to such court and remain under his seal until opened in court."

Without doubt the certificate of the magistrate is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury if all the necessary facts are there sufficiently disclosed. It is not denied that the reducing of the deposition to writing in the presence of the magistrate is a fact made material by the statute, and that proof of it is a necessary preliminary to the right of introducing it at the trial. But it is supposed that sufficient may be gathered by intendment from the certificate of the magistrate to justify the presumption that it was done. The certificate is in these words:

"State of Tennessee, Dickson County, ss."

"At Charlotte, in said County, on the fourth day of July, 1822, before me, James M. Ross, justice of the peace, and one of the judges of the County Court of Dickson County, came, personally John Mockbee, being about the age of fifty-one years, and after being carefully examined and cautioned and sworn to testify the whole truth, did subscribe the foregoing and annexed deposition after the same was reduced to writing by him in his own proper hand."

The certificate then proceeds to state the reason for taking the deposition, &c., in the usual form. It is remarkable that the certificate follows throughout, with great exactness of terms, every requisition in the statute with the exception as to the deposition's being reduced to writing in the presence of the magistrate, and it is scarcely presumable that this was accidentally omitted. At all events, every word in the certificate may be perfectly true and yet the deposition may not have been reduced to writing in the magistrate's presence. If this be so, then there can arise no just presumption in favor of it. And we think in a case of this nature, where evidence is sought to be admitted contrary to the rules of the common law, something more than a mere presumption should exist that it was rightly taken. There ought to be direct proof that the requisitions of the statute have been fully complied with. We are therefore of opinion that the deposition was properly rejected.

The more important question in the cause is that relative to the evidence introduced to repel the plea of the statute of

Page 26 U. S. 357

limitations. In the course of the trial, the plaintiff read to the jury certain articles of co-partnership made between the defendants in March, 1810, whereby the defendants entered into a joint trade and partnership in the manufacturing of salt at a place known by the name of the United States' Saline, near the Wabash River within the Illinois Territory, for the term of three years then next ensuing under the style of Taylor, Wilkins & Co. He also gave evidence that large quantities of iron castings had been sold and delivered by him to the company during the term of the co-partnership. He then introduced the testimony of one Patterson Baine, who stated

"That sometime in the year 1818, or 1819, the plaintiff, Bell, came to his house, in Lexington and stated that he had again come up to endeavor to get the amount of his account from the defendants. He requested the witness to go with the plaintiff to Col. Morrison's (one of the defendants) on that business. The witness went. The plaintiff and Morrison had a good deal of conversation on the subject of the plaintiff's account against the Saline Company for metal furnished, which is not recollected by the witness. The witness recollects that Morrison stated that the books and papers relative to the plaintiff's claim were in the hands of Jonathan Taylor (one of the defendants), which put it out of his power to settle the account at that time, and expressed a willingness, but for that reason, to settle with the plaintiff. The plaintiff bade him goodbye and declared that that was the last time he should ever apply for a settlement of his account. The plaintiff then left the house of Morrison and returned with the witness to his house, where he remained until after breakfast on the next day; that shortly after breakfast, Morrison came to the house of the witness and said to Bell (the plaintiff) that he was very anxious that his (the plaintiff's) account should be settled; adding, 'I know we are owing you, and I am anxious it should be settled.' He then mentioned to the plaintiff that he (Morrison) was getting old, and did not like to have such things hanging over him, and wished to have the business settled and to have done with it. He then proposed to give the plaintiff $7,000 and close the business. The plaintiff refused to take it, and they parted; that no account or papers of any kind were shown or produced by Bell at the time of these conversations with Morrison, but he understood the conversations to relate to the claim for castings furnished by him to the company of Taylor, Wilkins and others. The witness observed to the plaintiff, after Morrison's departure, that he should have taken Morrison's offer; that 'a half loaf was better than no bread.' The plaintiff also introduced certain letters written by Morrison and Butler (two of the defendants) to him. The first was

Page 26 U. S. 358

a letter from Morrison, dated 2 October, 1814, and it contains, among others, the following expressions:"

" I wish whatever is due to you should be paid; I have once more to ask you to follow the advice I am about to offer, viz., to come up here, without delay (as Col. Butler may be soon ordered off), and I cannot believe your present suit will answer any purpose,"

"&c."

" It is not our wish to keep from you, whatever may be your just due. We have sent for the company books some two or three weeks since; they will come to Louisville by water, and on your and Mr. Wheatley's being there, I have no doubt but your account can be adjusted, and that more to your satisfaction than it ever can be from the result of your suit,"

"&c. 'I wish your account settled, and I have no hesitation in saying, on your coming here, it will be done.'"

The next was a letter from Butler dated 26 October, 1817, in which he informs the plaintiff that on the 20 November, Messrs. Morrison and Wilkins will be at Hopkinsville "for the purpose of adjusting some of the affairs of the old Saline Company," &c., and desires that he "will be present, in order that a settlement may be effected, if possible, of the account which you [he] set up against the company." The next is from Butler, dated 8 November, 1817, again mentioning the intended meeting on 20 November "for the purpose of adjusting our old account with you," and he adds

"I hope, therefore, you will be at Hopkinsville for the purpose of enabling us to settle this old affair, to which, I am sure, all must be most anxious."

The next is from Butler, dated 23 October, 1818, in which he alludes to a complaint made by the plaintiff of Butler's absence from home on the 5th of the same month, when the plaintiff called there, and reminds the plaintiff of a conversation they had at the Greenville Springs "about a day of meeting to adjust the account between the former Saline Company and yourself," and excuses himself for his absence. He adds,

"I have now, Sir, attended at three places, upon three appointments made by yourself and myself, without being able to have a meeting, &c. If it would suit you to be at Frankfort during the sitting of the legislature, we might possibly come to some understanding on the subject."

The next is a letter from Jonathan Taylor (one of the defendants) to the plaintiff, dated 13 March, 1818, in which he says,

"I received a letter last Monday from Col. Butler inviting me to attend an appointment with you at Hopkinsville on the 26th of this month for the purpose of adjusting the old company account. I shall endeavor to attend at that time, when, if we can make an arrangement equally mutual for the metal I may hereafter want, it can be done."

Other letters

Page 26 U. S. 359

of Taylor were read in evidence, but they all bear date in the years 1811 and 1812.

It was further proved that the plaintiff was present in 1814, when the Saline and improvements were delivered over to Bates, the succeeding lessee, and that the plaintiff was then apprised that the term of the defendants, as lessees, had terminated. After the evidence on the part of the plaintiff was closed, the defendants' counsel moved the court to exclude the testimony of Patterson Baine and all the letters bearing date within five years before the bringing of this suit offered by the plaintiff to show a promise on the part of the defendants or any one of them or any member of said firm or partnership within five years next before the commencement of this suit, and the court so excluded from the jury the evidence of the said Bane and all the letters dated within five years aforesaid tending to prove a promise in five years next before the commencement of this suit by the defendants or either of them or any member of said firm or partnership, as prayed by the defendants' counsel, and decided that

"there was no sufficient evidence or admissions by the defendants, or either of them, or any member of said firm or partnership, to prove such a promise in five years before the commencement of this suit as would take the case out of the statute of limitations or should be left to the jury as conducing to that effect."

To which opinion of the court the plaintiff filed his bill of exceptions, and the correctness of this opinion has constituted the main ground of the elaborate argument at this bar.

Two points are necessarily involved in the discussion of this opinion. The first is whether the evidence so excluded (supposing it to be, in all other respects unobjectionable) was competent in point of law to have been left to the jury to infer a promise sufficient to take the case out of the statute of limitations. The second is whether, supposing it would be competent, in ordinary cases the fact that it was the acknowledgment or promise of one partner after the dissolution of the partnership did not justify its exclusion, as incompetent evidence to bind the other partners.

The statute of limitations of Kentucky is substantially the same with the Statute of 21 of James, ch. 16, with the exception, that it substitutes the term of five years instead of six. The English decisions have therefore been resorted to upon the present occasion as illustrative of the true construction of the statute, and, in this view, are doubtless entitled to great consideration. They are not, however, and cannot be considered as conclusive authority, upon the construction of the statute passed by a state, upon the like subject, for this justly belongs to the local state tribunals, whose rules of

Page 26 U. S. 360

interpretation must be presumed to be founded upon a more just and accurate view of their own jurisprudence than those of any foreign tribunal, however respectable. If, therefore, upon examination it shall be found that the doctrines of the Kentucky courts upon this subject are irreconcilable with those deduced from the Statute of James, this Court would, in conformity with its general practice, follow the local law and administer the same justice which the state court would administer between the same parties.

It has often been matter of regret in modern times that in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that instead of being viewed in an unfavorable light, as an unjust and discreditable defense, it had received such support as would have made it what it was intended to be -- emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten or be incapable of explanation by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts and to suppress those prejudices which may rise up at a distance of time and baffle every honest effort to counteract or overcome them. Parol evidence may be offered of confessions (a species of evidence which, it has been often observed, it is hard to disprove and easy to fabricate) applicable to such remote times as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further and admit that loose and general expressions from which a probable or possible inference may be deduced of the acknowledgment of a debt by a court or jury; that as the language of some cases has been, any acknowledgment, however slight, or any statement not amounting to a denial of the debt; that any admission of the existence of an unsettled account, without any specification of amount or balance and however indeterminate and casual, are yet sufficient to take the case out of the statute of limitations, and to let in evidence, aliunde, to establish any debt, however large and at whatever distance of time; it is easy to perceive, that the wholesome objects of the statute must be in a great measure defective, and the statute virtually repealed.

The English decisions upon this subject, have gone great lengths -- greater, indeed, in our judgment, than any sound interpretation of the statute will warrant, and in some instances to an extent which is irreconcilable with any just

Page 26 U. S. 361

principle. There appears at present a disposition on the part of the English courts to retrace their steps and, as far as they may, to bring back the doctrine to sober and rational limits. The American courts have evinced a like disposition. In the recent case of Bangs v. Hall, 2 Picker. 368, the principal cases were reviewed by the Supreme Court of Massachusetts and it was held that to take a case out of the statute, there must be an unqualified acknowledgment not only of the debt as originally due, but that it continues so, and if there has been a conditional promise, that the condition has been performed -- a doctrine, quite as comprehensive, has been asserted in the supreme court of New York. The subject was much considered in the case of Sands v. Gelston, 15 Johns. 511, where Mr. Chief Justice Spencer, in delivering the opinion of the court, said

"that if at the time of the acknowledgment of the existence of the debt, such acknowledgment is qualified in a way to repel the presumption of a promise to pay, it will not be evidence of a promise sufficient to revive the debt and take it out of the statute."

In consonance with this principle, the same court has held that

"if the acknowledgment be accompanied with a declaration that the party intends to rely on the statute as a defense, such an acknowledgment is wholly insufficient. [Footnote 1]"

In the case of Clementson v. Williams, 8 Cranch 72, this Court expressed the opinion that the decisions on this subject had gone full as far as they ought to be carried, and that the Court was not inclined to extend them; that the statute of limitations was entitled to the same respect with other statutes, and ought not to be explained away. In that case an attempt was made to charge a partnership by an acknowledgment made after its dissolution by one of the partners when an account was presented to him that "the account was due, and he supposed it had been paid by the other partner, but he had not paid it himself, and did not know of its being ever paid." It was held that this was not a sufficient acknowledgment to take the case out of the statute. The Chief justice, in delivering the opinion of the court, said,

"In this case there is no promise, conditional or unconditional, but a simple acknowledgment. This acknowledgment goes to the original justice of the account. But this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not sufficient to take the case out of the act, that the claim should be proved, or be

Page 26 U. S. 362

acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due."

In the case of Wetzell v. Bussard, 11 Wheat. 309, the subject again came before this Court; and the English and American authorities were deliberately examined. The Court there expressly held that

"an acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part. If it be connected with circumstances which in any manner affect the claim or if it be conditional, it may amount to a new assumpsit for which the old debt is a sufficient consideration, or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown."

We adhere to the doctrine thus stated, and think it the only exposition of the statute which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner and be in its terms unequivocal and determinate, and if any conditions are annexed, they ought to be shown to be performed.

If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay; if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to probable inference which may affect different minds in different ways, we think they ought not to go to a jury as evidence of a new promise to revive the cause of action. Any other course would open all the mischiefs against which the statute was intended to guard innocent persons, and expose them to the dangers of being entrapped in careless conversations and betrayed by perjuries.

It may be that in this manner an honest debt may sometimes be lost, but many unfounded recoveries will be prevented; and viewing the statute in the same light in which it was viewed by English judges at an early period, as a beneficial law on which the security of all men depends, we think its provisions ought not to be lightly overturned, and that no creditor has a right to complain of a strict construction, since it is only by his own fault and laches that it can be brought to bear injuriously upon him. And if the early interpretation had been adhered to, that nothing but an express promise should take

Page 26 U. S. 363

a case out of the statute, it is far from being certain that it would not have generally been in promotion of justice.

But the present case is not left to be determined solely upon general principles and authorities. There is a series of decisions of the Kentucky courts upon the construction of their own statute of limitations which, if they differed from those of other courts, would as matter of local law govern this Court upon the present occasion. In the construction of local statutes, we have been in the habit of respecting and following the judgments of the local tribunals.

The first and leading case is Bell v. Rowlands Administrators, in Hardin's Reports 301. In that case, the defendant made an acknowledgment

"that he had once owed the plaintiff, but he supposed his brother had paid it in Virginia (the place where the original transaction took place in the year 1785), and if his brother had not paid it, he owed it yet."

The court held that the acknowledgment was not sufficient to take the case out of the statute; that the defendant was not bound to prove that his brother had not paid the debt; that the law would imply a promise only where the party ought to promise, and that the defendant ought not to have promised, under the circumstances of that case, to pay a debt which he supposed to be paid. But the general reasoning of the court, which is drawn up with great clearness and force, goes much further. The court said, that the English decisions were not obligatory upon them, in the construction of their own statute, although similar in its provisions to the English statute; and that so far as they had gone upon nice refinements for the purpose of evading the statute, they must be disregarded. If the slightest acknowledgment, if strained, constructive acknowledgments and promises, are held sufficient, it must multiply litigation, produce endless uncertainty, and it is to be feared, a fruitful crop of perjuries.

Slight circumstances and a man's loose expressions would be construed into a full acknowledgment of the debt when he himself neither intended to make nor understood himself as making any acknowledgment at all. Instances of this sort are frequent in the books, but the example is too dangerous to be countenanced. And the court further declared,

"Upon the whole we are of opinion that the only safe rule that can be adopted capable of any reasonable certainty is that in order to take the case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at the time, coupled with the original consideration, or an express promise to pay it, must be proved to have been made within the time prescribed by the statute."

There was another point in the case deserving of notice,

Page 26 U. S. 364

which was whether the court ought to have instructed the jury as to the law of the case, and then have left it with them to determine whether an acknowledgment of the debt and a promise to pay it had been proved to have been made within the five years, upon which it was held that it was competent for the court either to do so or (as it did in that case), taking the whole of the evidence on the part of the plaintiff as true and the facts sworn to by the witnesses as sufficiently proved, to instruct the jury as to the law arising upon those facts.

This case has never been departed from in Kentucky, and has been frequently recognized. In Harrison v. Handley, 1 Bibb 443, the plaintiff, to take the case out of the statute, produced a witness who swore

"that sometime in May or June, 1796, he presented an account to W. H. [the defendant] amounting to

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