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 �250 or �260; that H. objected
to certain articles in the said account, and after the said
articles were stricken out of the account, H. then acknowledged
it was all right."
The court below ruled that this was such an acknowledgment as
took the case out of the statute, but the decision was reversed by
the court of appeals. Mr. Chief Justice, in delivering the opinion
of the court, adverted to the case of
Bell v. Rowland's
Administrators and recognized its authority in the fullest
terms. And after expressing a doubt whether an
implied
promise would not be barred by the statute, he proceeded to
say,
"Be that as it may, mere loose expressions and vague
acknowledgments will not suffice. The acknowledgment from which the
law is to raise a promise contrary to the provisions of the statute
must be clear and express, where the mind is brought directly to
the point debt or no debt at the present time, not whether the debt
was once an existing debt. That the law will argumentatively make
it a debt
in praesenti if the party does not in his
acknowledgment say it is not or prove payment is a proposition that
cannot be granted in opposition to the provisions of the statute.
Where the limitation has run, to get clear of it, the whole burden
of proof is thrown on the plaintiff
to prove a good and
subsisting debt and a promise to pay within the period
prescribed to his action. The acknowledgment of H. does not come up
to this requisition. There was no express promise to pay; there was
no express acknowledgment of a then subsisting debt; there was no
assent to pay. 'H. then acknowledged the
amount was all
right' is too loose, vague, and indefinite an acknowledgment
to revive a transaction and put it under investigation again after
the law had closed it. That the amount was right could be true, and
might well be acknowledged if the articles had been truly noted
notwithstanding
Page 26 U. S. 365
the party might have paid it or was unwilling to acknowledge it
as a debt then subsisting, and that is the point to which an
express acknowledgment should have been proved."
This is certainly a very strong case to illustrate the rule,
adopted in Kentucky.
In
Gray v. Lawridge, 2 Bibb 284, it was proved on the
trial that the party had admitted the justice of the account within
five years and that it might go in discharge of the interest due on
a bond of the defendant on which the suit was brought by the
plaintiff. The witness did not know the particular items of the
account, nor the amount thus acknowledged by the plaintiff. The
court held that the acknowledgment did not go further than that the
demand should be allowed in payment of the interest, and that so
much as the party could show of a debt due to him
not exceeding
the amount of the interest then due, was taken out of the
statute, and no further. In
Ormsby v. Letcher, 3 Bibb 269,
it was decided that an agreement of the defendant within five years
that a settlement made with the brother of the defendant should be
subject to the examination of either party did not take the case
out of the statute. It may be inferred that it was a settlement of
accounts between the parties, and that the action was brought for
the balance due to the plaintiff, although the report does not so
state. The court said "this agreement does not contain an
acknowledgment of a subsisting demand and a promise to pay in
consideration thereof." The language of this case, as well as that
in
Harrison v. Handley, might lead to the impression that
the court thought that an acknowledgment of a subsisting debt was
not alone sufficient, but that there must be also a promise to pay
the debt. But perhaps it is more correct to construe it as
importing no more than that there must be such an acknowledgment
coupled with circumstances from which a promise to pay would
naturally and irresistibly be implied.
These are all the decisions which we have met with in the
Kentucky Reports on this point. They evince a strong disposition in
the courts of that state to restrict within very close limits every
attempt to revive debts by implied promises resulting from
acknowledgments and other confessions by parol. It is our duty to
follow out the spirit of these decisions so far as we are enabled
to gather the principles on which they are founded, and to apply
them to the case at bar.
The evidence in the case at bar resolves itself into two heads
-- first whether 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
Page 26 U. S. 366
parties understood the balance to be; is sufficient to take the
case out of the statute, and let in the plaintiff to prove
aliunde any balance, however large it may be; secondly, if
not, whether the admission on the part of Morrison of his
willingness to pay $7,000 and close the business might (under all
the circumstances) entitle the plaintiff to recover that amount,
and thus to furnish a just objection to the ruling of the circuit
court.
In both of these views, the case is not without its
difficulties, and the Kentucky decisions present no authority
directly in point. The evidence is clear of the admission of an
unsettled account as well from the letters of Butler as the
conversation of Morrison. The latter acknowledged that the
partnership "was owing" the plaintiff, but as he had not the books,
he could not settle with him. If this evidence stood alone, it
would be too loose to entitle the plaintiff to recover anything.
The language might be equally true whether the debt were one dollar
or ten thousand dollars. It is indispensable for the plaintiff to
go further and to establish by independent evidence the extent of
the balance due him before there can arise any promise to pay it as
a subsisting debt. The acknowledgment of the party, then, does not
constitute the sole ground of the new implied promise, but it
requires other intrinsic aid before it can possess legal certainty.
Now if this be so, does it not let in the whole mischief intended
to be guarded against by the statute? Does it not enable the party
to bring forward stale demands after a lapse of time, when the
proper evidence of the real state of the transaction cannot be
produced? Does it not tend to encourage perjury by removing the bar
upon slight acknowledgments of an indeterminate nature? Can an
admission that something is due or some balance owing be justly
construed into a promise to pay any debt or balance which the party
may assert or prove before a jury? If there be an express promise
to such an effect, that might be pressed as a dispensation with the
statute; but the question here is whether the law will imply such a
promise from language so doubtful and general. The language of the
court in
Harrison v. Hanley was that "mere loose
expressions or vague acknowledgments, will not suffice." We think
that such a general admission of an unsettled account and of an
indeterminate debt would, by the courts of Kentucky, be held as too
vague an acknowledgment to take the case out of the statute. It
would not establish any particular subsisting debt, and therefore
be destitute of reasonable certainty to raise an implied
promise.
The other point is also not without its embarrassments. Was
Morrison's offer of $7,000 to close the business the absolute
admission of a debt to that amount, or a conditional
Page 26 U. S. 367
promise to pay that sum if the party would accept it in
discharge of his claims? We think, taking all the circumstances, it
scarcely admits of the former interpretation. It appears from the
testimony itself that Morrison did not know the state of the
partnership accounts, and had not the partnership books to enable
him to ascertain it. He also expressed a personal reason for his
desire to settle the account, alleging that he was growing old and
was anxious for a settlement. His offer must therefore be deemed to
be in the nature of a compromise, to pay the sum if the plaintiff
would give a complete discharge of his claims, or, to use his own
words, "and close the business." It may therefore be fairly deemed
a conditional offer to pay a conjectural, not a known, balance; to
buy peace, and not to acknowledge an absolute debt. If this be, as
we think it is, a conditional offer, then upon the clear text of
the Kentucky as well as the English and of other American
decisions, the case would not be taken out of the statute unless
the plaintiff had performed the condition.
But if this view of the case should be more doubtful than it
seems to us to be, it still remains to consider whether the
acknowledgment of one partner after the dissolution of the
co-partnership is sufficient to take the case out of the statute as
to all the partners. How far it may bind the partner making the
acknowledgment to pay the debt need not be inquired into; to
maintain the present action, it must be binding upon all.
In the case of
Bland v. Haslering, 2 Vent. 151, where
the action was against four upon a
joint promise and the
plea of the statute of limitations was put in, and the jury found
that one of the defendants did promise within six years, and that
the others did not, three judges, against Ventris, J., held that
the plaintiff could not have judgment against the defendant, who
had made the promise. This case has been explained upon the ground
that the verdict did not conform to the pleadings and establish a
joint promise. It is very doubtful, upon a critical examination of
the report, whether the opinion of the court or of any of the
judges proceeded solely upon such a ground.
In
Whitcomb v. Whiting, 2 Doug. 652, decided in 1781 in
an action on a joint and several note brought against one of the
makers, it was held that proof of payment by one of the others of
interest on the note and of part of the principal within six years
took the case out of the statute as against the defendant who was
sued. Lord Mansfield said
"payment by one is payment for all, the one acting virtually for
all the rest, and in the same manner an admission by one is an
admission by all, and the law raises the promise to pay when the
debt is admitted to be due."
This is the whole reasoning
Page 26 U. S. 368
reported in the case, and is certainly not very satisfactory. It
assumes that one party who has authority to discharge has
necessarily also authority to charge the others, that a virtual
agency exists in each joint debtor to pay for the whole, and that a
virtual agency exists, by analogy, to charge the whole. Now this
very position constitutes the matter in controversy. It is true
that a payment by one does enure for the benefit of the whole, but
this arises not so much from any virtual agency for the whole as by
operation of law, for the payment extinguishes the debt; if such
payment were made after a positive refusal or prohibition of the
other joint debtors, it would still operate as an extinguishment of
the debt, and the creditor could no longer sue them. In truth, he
who pays a joint debt pays to discharge himself, and so far from
binding the others conclusively by his act as virtually theirs
also, he cannot recover over against them in contribution without
such payment has been rightfully made and ought to charge them.
When the statute has run against a joint debt, the reasonable
presumption is that it is no longer a subsisting debt, and
therefore there is no ground on which to raise a virtual agency to
pay that which is not admitted to exist. But if this were not so,
still there is a great difference between creating a virtual agency
which is for the benefit of all and one which is onerous and
prejudicial to all. The one is not a natural or necessary
consequence from the other. A person may well authorize the payment
of a debt for which he is now liable, and yet refuse to authorize a
charge where there at present exists no legal liability to pay. Yet
if the principle of Lord Mansfield be correct, the acknowledgment
of one joint debtor will bind all the rest even though they should
have utterly denied the debt at the time when such acknowledgment
was made.
The doctrine of
Whitcomb v. Whiting has been followed
in England in subsequent cases, and was applied to in a strong
manner in
Jackson v. Fairbank, 2 H.Bl. 340, where the
admission of a creditor to prove a debt, on a joint and several
note under a bankruptcy and to receive a dividend was held
sufficient to charge a solvent joint debtor in a several action
against him in which he pleaded the statute as an acknowledgment of
a subsisting debt. It has not, however, been received without
hesitation. In
Clark v. Bradshaw, 3 Esp. 155, Lord Kenyon,
at
Nisi Prius, expressed some doubts upon it, and the
cause went off on another ground. And in
Brandram v.
Wharton, 1 Barn. & Ald. 463, the case was very much
shaken, if not overturned. Lord Ellenborough upon that occasion
used language from which his dissatisfaction with the whole
doctrine may be clearly inferred. "This doctrine," said he,
"of rebutting the statute of limitations by an acknowledgment
other
Page 26 U. S. 369
than that of the party himself began with the case of
Whitcomb v. Whiting. By that decision, where, however,
there was an express acknowledgment by an actual payment of a part
of the debt by one of the parties, I am bound. But that case was
full of hardship, for this inconvenience may follow from it.
Suppose a person liable jointly with thirty or forty others to a
debt, he may have actually paid it, he may have had in his
possession the document, by which that payment was proved, but may
have lost his receipt. Then, though this was one of the very cases
which this statute was passed to protect, he may still be bound and
his liability be renewed by a random acknowledgment made by someone
of the thirty or forty others who may be careless of what mischief
he is doing and who may even not know of the payment which has been
made. Beyond that case, therefore, I am not prepared to go so as to
deprive a party of the advantage given him by the statute by means
of an implied acknowledgment."
The English cases decided since the American Revolution are by
an express statute of Kentucky declared not to be of authority in
their courts, and consequently
Whitcomb v. Whiting in
Douglas and the cases which have followed it leave the question in
Kentucky quite open to be decided upon principle.
In the American courts, so far as our researches have extended,
few cases have been litigated upon this question. [
Footnote 2] In
Smith Damor v. D. & G.
Ludlow, 6 Johns. 267, the suit was brought against both
partners, and one of them pleaded the statute. Upon the dissolution
of the partnership, public notice was given that the other partner
was authorized to adjust all accounts, and an account signed by him
after such advertisement and within six years was introduced. It
was also proved that the plaintiff called on the partner who
pleaded the statute before the commencement of the suit and
requested a settlement, and that he then admitted an account, dated
in 1797, to have been made out by him; that he thought the account
had been settled by the other defendant, in whose hands the books
of the partnership were, and that he would see the other defendant
on the subject and communicate the result to the plaintiff. The
court held that this was sufficient to take the case out of the
statute, and said that without any express authority, the
confession of one partner, after the dissolution, will take a debt
out of the statute. The acknowledgment will not
Page 26 U. S. 370
of itself be evidence of an original debt, for that would enable
one party to bind the other in new contracts. But the original debt
being proved or admitted, the confession of one will bind the other
so as to prevent him from availing himself of the statute. This is
evident from the cases of
Whitcomb v. Whiting and
Jackson v. Fairbank, and it results necessarily from the
power given to adjust accounts. The court also thought the
acknowledgment of the partner setting up the statute was sufficient
of itself to sustain the action. This case has the peculiarity of
an acknowledgment made by both partners, and a formal
acknowledgment by the partner who was authorized to adjust the
accounts after the dissolution of the partnership. There was not,
therefore, a virtual, but an express and notorious agency devolved
on him to settle the account. The correctness of the decision,
cannot, upon the general view taken by the court, be questioned. In
Roosevelt v. Marks, 6 Johns.Ch. 266. 291, Mr. Chancellor
Kent admitted the authority of
Whitcomb v. Whiting, but
denied that of
Jackson v. Fairbank for reasons which
appear to us solid and satisfactory. Upon some other cases in New
York we shall have occasion hereafter to comment. In
Hunt v.
Bridgham, 2 Pick. 581, the Supreme Court of Massachusetts,
upon the authority of the cases in Douglas, H. Blackstone, and
Johnson held that a partial payment by the principal debtor on a
note took the case out of the statute of limitations as against a
surety. The court did not proceed to any reasoning to establish the
principle, considering it as the result of the authorities.
Shelton v. Cocks, 3 Mumford 191, is to the same effect,
and contains a mere annunciation of the rule, without any
discussion of its principle.
Simpson v. Morrison, 2 Bay
533, proceeded upon a broader ground, and assumed the doctrine of
the case in 1 Taunt. 104, hereinafter noticed, to be correct.
Whatever may be the just influence of such recognitions of the
principles of the English cases in other states as the doctrine is
not so settled in Kentucky, we must resort to such recognition only
as furnishing illustrations to assist our reasoning, and decide the
case now as if it had never been decided before.
By the general law of partnership, the act of each partner
during the continuance of the partnership and within the scope of
its objects binds all the others. It is considered the act of each
and of all, resulting from a general and mutual delegation of
authority. Each partner may therefore bind the partnership by his
contracts in the partnership business, but he cannot bind it by any
contracts beyond those limits. A dissolution, however, puts an end
to the authority. By the force of its terms, it operates as a
revocation of all power to create new contracts,
Page 26 U. S. 371
and the right of partners as such can extend no further than to
settle the partnership concerns already existing, and to distribute
the remaining funds. Even this right may be qualified and
restrained by the express delegation of the whole authority to one
of the partners.
The question is not, however, as to the authority of a partner
after the dissolution to adjust an admitted and subsisting debt --
we mean admitted by the whole partnership or unbarred by the
statute -- but whether he can, by his sole act, after the action is
barred by lapse of time, revive it against all the partners without
any new authority communicated to him for this purpose. We think
the proper resolution of this point depends upon another -- that is
whether the acknowledgment or promise is to be deemed a mere
continuation of the original promise or a new contract springing
out of and supported by the original consideration. We think it is
the latter, both upon principle and authority, and if so, as after
the dissolution no one partner can create a new contract binding
upon the others, his acknowledgment is inoperative and void as to
them.
There is some confusion in the language of the books resulting
from a want of strict attention to the distinction here indicated.
It is often said that an acknowledgment revives the promise, when
it is meant that it revives the
debt or
cause of
action. The revival of a debt supposes that it has been once
extinct and gone; that there has been a period in which it had lost
its legal use and validity. The act which revives it is what
essentially constitutes its new being and is inseparable from it.
It stands not by its original force, but by the new promise, which
imparts vitality to it. Proof of the latter is indispensable to
raise the
assumpsit, on which an action can be maintained.
It was this view of the matter which first created the doubt
whether it was not necessary that a new consideration should be
proved to support the promise, since the old consideration was
gone. That doubt has been overcome, and it is now held that the
original consideration is sufficient, if recognized, to uphold the
new promise, although the statute cuts it off, as a support for the
old. What, indeed, would seem to be decisive on this subject is
that the new promise, if qualified or conditional, restrains the
rights of the party to its own terms, and if he cannot recover by
those terms, he cannot recover at all. If a person promise to pay
upon condition that the other do an act, performance must be shown,
before any title accrues. If the declaration lays a promise by or
to an intestate, proof of the acknowledgment of the debt by or to
his personal representative will not maintain the writ. Why not,
since it establishes the continued existence of the
Page 26 U. S. 372
debt? The plain reason is that the promise is a new one, by or
to the administrator himself upon the original consideration, and
not a revival of the original promise. So if a man promises to pay
a preexisting debt, barred by the statute, when he is able or at a
future day, his ability must shown or the time must be passed
before the action can be maintained. Why? Because it rests on the
new promise, and its terms must be complied with. We do not here
speak of the form of alleging the promise in the declaration, upon
which, perhaps, there has been a diversity of opinion and judgment,
but of the fact itself whether the promise ought to be laid in one
way or another, as an absolute or as a conditional promise, which
may depend upon the rules of pleading.
This very point came before the twelve judges, in the case of
Hyling v. Hastings, 1 Ld.Raym. 389, 421, in the time of
Lord Holt. There, one of the points was
"whether the acknowledgment of a debt within six years would
amount to a new promise to bring it out of the statute, and they
were all of opinion that it would not, but that it was
evidence of a promise."
Here then, the judges manifestly contemplated the acknowledgment
not as a continuation of the old promise, but as evidence of a new
promise, and that it is the new promise which takes the case out of
the statute. Now what is a new promise but a new contract? a
contract to pay, upon a preexisting consideration, which does not,
of itself, bind the party to pay, independently of the contract?
So, in
Boydell v. Drummond, 2 Camp. 157, Lord
Ellenborough, with his characteristic precision, said "if a man
acknowledges the existence of a debt, barred by the statute, the
law has been supposed to raise a
new promise to pay it,
and thus the
remedy is revived." And it may be affirmed
that the general current of the English as well as the American
authorities conforms to this view of the operation of an
acknowledgment. In
Jones v. Moore, 5 Binney 573, Mr. Chief
Justice Tilghman, went into an elaborate examination of this very
point, and came to the conclusion from a review of all the cases
that an acknowledgment of the debt can only be considered as
evidence of a
new promise, and he added "I cannot
comprehend the meaning of
reviving the old debt in any
other manner, than by a
new promise."
There is a class of cases not yet adverted to which materially
illustrates the right and powers of partners after the dissolution
of the partnership, and bears directly on the point under
consideration. In
Hackley v. Patrick, 3 Johns. 536, it was
said by the court that
"after a dissolution of the partnership, the power of one party
to bind the others, wholly ceases. There is no reason why his
acknowledgment of an account
Page 26 U. S. 373
should bind his co-partners any more than his giving a
promissory note in the name of the firm or any other act."
And it was therefore held that the plaintiff must produce
further evidence of the existence of an antecedent debt before he
could recover, even though the acknowledgment was by a partner
authorized to settle all the accounts of the firm. This doctrine
was again recognized by the same court in
Malden v.
Sherburne, 15 Johns. 409, 424, although it was admitted that
in
Wood v. Braddick, 1 Taunt. 104, a different decision
had been had in England. If this doctrine be well founded, as we
think it is, it furnishes a strong ground to question the efficacy
of an acknowledgment to bind the partnership for any purpose. If it
does not establish the existence of a debt against the partnership,
why should it be evidence against it at all? If evidence
aliunde of facts within the reach of the statute as the
existence of a debt be necessary before the acknowledgment binds,
is not this letting in all the mischiefs against which the statute
intended to guard the parties --
viz., the introduction of
stale and dormant demands of long standing and of uncertain proof?
If the acknowledgment
per se does not bind the other
partners, where is the propriety of admitting proof of an
antecedent debt, extinguished by the statute as to them, to be
revived without their consent? It seems difficult to find a
satisfactory reason why an acknowledgment should raise a new
promise when the consideration upon which alone it rests as a legal
obligation is not coupled with it in such a shape as to bind the
parties; that the parties are not bound by the admission of the
debt as a debt, but are bound by the acknowledgment of the
debt as a promise upon extrinsic proof. The doctrine in 1 Taunt.
104 stands upon a clear, if it be a legal, ground that as to the
things past, the partnership continues and always must continue
notwithstanding the dissolution. That however is a matter which we
are not prepared to admit, and constitutes the very ground now in
controversy.
The light in which we are disposed to consider this question is
that 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. It is wholly
immaterial what is the consideration which is to raise such cause
of action -- whether it be a supposed preexisting debt of the
partnership or any auxiliary consideration which might prove
beneficial to them. Unless adopted by them, they are not bound by
it. When the statute of limitations has once run against a debt,
the cause of action against the partnership is gone. The
acknowledgment, if it is to operate at all, is to
Page 26 U. S. 374
create a new cause of action, to revive a debt which is extinct,
and thus to give an action which has its life from the new promise
implied by law from such an acknowledgment, and operating and
limited by its purport. It is then, in its essence, the creation of
a new right, and not the enforcement of an old one. We think that
the power to create such a right does not exist after a dissolution
of the partnership in any partner.
There is a case in the Kentucky Reports not cited at the bar
which coincides, as far as it goes, with our own views, and if
taken as a general exposition of the law according to its terms is
conclusive on this point. It is the case of
Walker & Evans
v. Duberry, 1 Marshall 189. It is very briefly reported, and
the opinion of the court was as follows.
"We are of opinion that the court below improperly admitted as
evidence against Walker, the certificate of J. T. Evans, made after
the dissolution of the partnership, between Walker and Evans,
acknowledging that the partnership firm was indebted to the
defendant Duberry in the sum demanded in the action brought by him
in the court below."
It cites 3 Johns 536; 3 Mumf. 191.
It does not appear what was the state of facts in the court
below, nor whether this was an action in which the statute of
limitations was pleaded, or only
nonassumpsit generally.
But the position is generally asserted that the acknowledgment of a
debt by one partner after a dissolution is not evidence against the
other. Whether the court meant to say in no case whatever or only
when the debt itself was proved
aliunde does not appear.
Its language is general, and would seem to include all cases, and
if any qualification were intended, it would have been natural for
the court to express that qualification and have confined it to the
circumstances of the case. The only room for doubt arises from the
citations of 3 Johnson and 3 Mumford. The former has been already
adverted to, and the latter,
Shelton v. Cocke, 3 Mumf.
191, recognized the distinction asserted in 3 Johns. as sound.
These citations may, however, have been referred to as mere
illustrations, going to establish the proposition of the court to a
certain extent, and not as limitations of its extent. In any view,
it leads to the most serious doubts whether the state courts of
Kentucky would ever adopt the doctrine of
Whitcomb v.
Whiting in Douglas, especially so as the early case in 2 Vent.
151 carries an almost irresistible presumption that the courts, at
that time held a doctrine entirely inconsistent with the case in
Douglas.
Upon the whole, it is our judgment that there is no error in the
decision of the circuit court, and it ought to be affirmed.
Page 26 U. S. 375
It is, however, to be understood that this opinion thus
expressed is not unanimous, but of the majority of the Court, and
as is apparent from the preceding reasoning, it has been
principally, although not exclusively, influenced by the course of
decisions in Kentucky upon this subject.
Judgment affirmed with costs.
[
Footnote 1]
See also Brown v. Campbell, 1 Serg. & R. 176;
Tries v. Boiselet, 9 Serg. & R. 128.
[
Footnote 2]
The Reporter has been informed, by Mr. Chief Justice Gibson that
at the December Term, 1827, of the Supreme Court of Pennsylvania,
the court decided, after full argument, that the acknowledgment by
a partner, after the dissolution of the partnership, will not take
the debt out of the statute so as to make the other former partners
liable. This case will be reported by Messrs. Sergeant &
Rawle.