Majority
p. 260Woolsey Burton, Indorsee of Nathaniel Ingraham, v. Thomas Robinson.
Headnote
Mothing short of a direct acknowledgment, or a distinct admission of the •existence of the debt as a subsisting demand, is sufficient to take it oui .of the operation of the statute of limitations.A qualified and conditional acknowledgment of a debt barred by the statute will not revive it, unless the condition is performed.
This was an action of assumpsit on a promissory note
p. 261contended that no such acknowledgment of the note as a present subsisting demand against the defendant, had been proved by the evidence
made by Thomas Robinson, the defendant, to the order of Nathaniel Ingraham, on'the 8th day, of August, 1840, for $500, and indorsed by the latter to Woolsey Burton, thó plaintiff. The action was commenced on the 5th day of September, 1854, and the only defence was the plea of the act of limitations. The plaintiff relied on a subsequent acknowledgment to take it out of the operation of the statute; and for this purpose he proved, by a witness who was present in the" spring of 1852, after the death of In-graham, the indorsee, at a settlement between his administrator and the defendant, and on the production of the book of accounts of the deceased, there appeared a credit on his account against the defendant for his note of $500, and the' administrator seemed to entertain some doubt whether such a note had ever been given to Ingraham by Robinson, and wished to know where it was, as he could find no such note among Ingraham’s papers, when Robinson informed him that it was in the hands of Woolsey Burton, and said that something had been paid on it; he did not say that it had been paid in full. The witness did not see the note, however, nor know the date of it, or that it was the same as the promissory note now produced and shown to him. The counsel for the plaintiff, for the same purpose, also offered in evidence an agreement in writing, bearing date September 4, 1854, entered into and signed by Woolsey Burton, administrator of Miers Burton and Thomas Robinson, pending a suit between the parties in that character, and which had been referred out of court, in which it was agreed between the parties that “ a certain promissory note of the latter to Nathaniel Ingraham, dated August 8,1840, for $500, and by him indorsed to Woolsey Burton in his own right, or any payments thereon, should not be considered by the referees in the case then pending between the parties as aforesaid.”
Robinson, for the defendant,
p. 262offered as would take the case out of the operation of the statute of limitations, for which he relied ou the authority of the two cases lately tried together in the Court of Errors and Appeals, before all the judges in bank, of Waples’s Administrator v. Morris’s Administrator, and Burton v. Waples’s Administratrix.[1]
p. 263insisted that there was evidence of a sufficient acknowledgment to avoid the plea
C. S. Layton, for the plaintiff,
p. 264and take the case out of the operation 'of the .statute of limitations. 1 Ch. Pl. 639; 2 Saund. Pl. and Ev. 648; New
p. 265lin v. Duncan, 1 Harr. 204 ; Black's Executors v. Reybold, 3 Harr. 528 .
p. 266
The Court,
charged the jury: In the opinion of the Court, nothing short of a direct acknow
p. 267
lodgment, or a distinct admission of the existence of the debt ás a subsisting demand, is sufficient to take the case
p. 268
out of the operation of the statute of limitations; but if they were satisfied that the written agreement which had been given in evidence-between the plaintiff, as the administrator of Miers Burton, deceased, and the defendant, was signed by the latter, then the Court considered it such an acknowledgment of a subsisting, demand on the promissory note in question, as would remove the bar of the statute.
ttoTlfi.—Houston, J., did not sit in this case, having been of counsel for the defendant.
Cases cited
- Newlin v. Duncan 1 Harr. 204 p. 265
- Black's Ex'rs. v. Reybold 3 Harr. 528 p. 265