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Opinion of the Court, per DAVIES, J.

his right, title and interest to the said real estate, and the plaintiff did thereby warrant and defend the above property. It was dated June 29, 1857, and signed, “Wm. R. Henry, by his agent, H. C. Campbell.” It was acknowledged on the same day by the agent, before a notary public.

The court held and decided the paper in evidence conveyed no title to the land in question to the defendant, not being under seal, and no power of attorney shown; to which ruling and decision the counsel for the plaintiff excepted. The court also decided that the defendant was not bound to tender to the plaintiff a reconveyance; to which ruling and decision the counsel for the plaintiff also duly excepted. The court also held and decided that the defendant was not liable on the note, because he was an infant when he executed it; to which ruling and decision the plaintiff also duly excepted. And thereupon the court directed the jury to render a verdict for the defendant; to which ruling and direction the plaintiff also excepted. Thereupon, the exceptions were directed to be heard in the first instance at the General Term, where judgment thereon was given for the defendant. The plaintiff now appeals to this court.

There is no controversy that the defendant was an infant at the time this note was executed. If he has done nothing since attaining his majority which makes the contract obligatory upon him, then the direction of the court to the jury to find a verdict for the defendant was correct. But it, however, he promised to pay the note, after arriving at full age, or ratified the contract, or affirmed the purchase for which the note was given, then the note became obligatory upon him,

The defendant failed to sustain the allegation, by his answer, that any fraudulent representations had been made to him to induce him to enter into the purchase, or that there was any failure of title in the plaintiff, and, consequently, a failure of the consideration of the note.

There has been much discussion in the books as to what acts or declarations of a party will revive a debt barred by the statute of limitations, or one discharged by an insolvent or bankrupt discharge, or render obligatory and valid the con

Opinion of the Court, per DAVIES, J.

tract of an infant. There has been a commingling of all these cases in judicial opinions, and, frequently, no clear and marked lines of distinction have been presented. I shall make the effort to eliminate some principles which are applicable to each of these cases, and endeavor to show wherein they differ and the reasons for such difference, and wherein they are coincident, and the principles which have been established as applicable to these three classes of cases. A clear understanding of the various decisions, and the principles settled by them, makes such an examination imperative, and from it we shall discover the doctrine settled, and the reasons therefor.

In Sands v. Gelston (15 Johns., 519), SPENCER, J., lays down what appears to be the correct rules in reference to debts barred by the statute of limitations, debts of infants not for necessaries, and the debts of bankrupts discharged under the bankrupt acts. In all these cases, although, by reason of certain provisions of law, such debts cannot be enforced against the debtors, still the debt remains, and the moral obligation to pay continues in full force. Hence it is after a debt is barred by the statute in the one case, or discharged by the operation of the bankrupt or insolvent laws in the other, or in the case of the infant, who, on his attaining his majority, and not before, can make a legal contract, which can be eo instanti enforced against him, that, in all these cases, the moral obligation has been held a sufficient and legal consideration, without any other, for the promise or undertaking to pay the debt, by acknowledgment, ratification, or a new promise. In other words, the courts have, in truth, regarded the old debt as continued or revived, and no new consideration was required to support it. SPENCER, J., says, in Sands v. Gelston, “I never could see the difference, as regards the revival of a debt, between one barred by the statute of limitations and one from which the debtor has been discharged under the bankrupt or insolvent laws. The remedy is equally gone in both cases. The statute of limitations requires all actions on contract to be commenced within six years next after the cause of such action accrued, and not after.

Tiffany. – Vol. VI. 67

Opinion of the Court, per DAVIES, J.

The remedy being suspended after six years, there yet exists a moral duty on the part of the debtor to pay the debt; and accordingly, a promise to pay a debt not extinguished, but as to which the remedy is lost, is a valid promise, and may be enforced, on the ground of the preëxisting moral duty. There is, then, no substantial difference between a debt barred by the statute of limitations, and a debt from the payment of which the debtor is exonerated by a discharge under bankrupt or insolvent laws. Both of these rest on the same principle with a debt contracted by an infant not for necessaries; yet it is singular that in neither of the latter cases will the bare acknowledgment that the debt once existed and has not been paid, support an action -- an express promise to pay being necessary.” A review of the cases, on the question of what is necessary to revive a debt barred by the statute of limitations, will clearly show that a bare or mere acknowledgment of the existence of the debt is sufficient, as the law will imply or infer from its existence a promise to pay it; and it is of little moment whether it be regarded as a new promise or a revivor and continuation of the old one.

In Johnson v. Beardslee (15 Johns., 4), an acknowledgment of the debt was holden to be sufficient evidence for the jury to presume a new promise. In Shulz v. Champlin (4 id., 461), the defendant said the debt ought to be paid, and mentioned eighteen months as the time he wanted for payment. This was held a promise, sufficient to make him liable. In Jones v. Moore (7 Binn., 573), an acknowledgment of a subsisting debt was sufficient to take the case out of the statute, and it was held it would authorize the jury to infer a new promise to pay, or, rather, that the old promise was continued, or, as some choose to call it, revived. (Mosher v. Hubbard, 13 Johns., 510.) On the claim being presented to the defendant, he did not intimate that he intended to avail himself of the statute; but the only question to his mind seemed to be, whether the account had not been paid, and he promised to examine his papers, and, if he found he had paid the order, he was to write the witness, but as the witness testified he had never written, the court held that this was

Opinion of the Court, per DAVIES, J.

sufficient to raise an implied promise to pay the money, unless on examinatiou it should be found that the order had been paid, and there was no evidence whatever of any payment. (Sands v. Gelston, supra.) SPENCER, J., says: “I am bound by authority to consider the acknowledgment of the existence of a debt within six years before the suit was brought, as evidence of a promise to pay the debt.”

In Clemenstine v. Williamson (8 Cranch, 72), MARSHALL, Ch. J., says: “It has been frequently decided that acknowledgment of a debt, barred by the statute of limitations, takes the case out of that statute, and revives the original cause of action. So far as decisions have gone, principles may be considered as settled, and the court will not lightly unsettle them.

It is not sufficient to take the case out of the act that the claim should be proved, or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due."

The same learned judge, in Wetzell v. Buzzard (11 Wheat., 309), remarked: “It is contended on the part of the plaintiff that he has proved an acknowledgment of the debt, and that such acknowledgment, according to a long series of decisions, revived the original promise, or it lays the foundation upon which the law raises a new promise. The English and American books are filled with decisions which support this general proposition. An unqalified admission that the debt was due at the time, has always been held to remove the bar created by the statute.”

In Bloodgood v. Bowen (4 Seld., 308), GARDINER, J.,, says: A mere acknowledgment of an indebtedness is but evidence from which a promise to pay may be inferred. When it is unconditional, a court or jury may infer a willingness to pay, or a promise to that effect, because it would be difficult to assign any other reason for a voluntary admission of this sort."

MARCY, J., says, in Depeyster v. Swart (3 Wend., 139), “that the bare acknowledgment of a debt, barred by the statute of limitations, is held to revive it."

In Purdy v. Austin (3 Wend., 189), the same justice says,

Opinion of the Court, per DAVIES, J.

after discussing the reasoning of the court in Sands v. Gelston, that the unqualified and unconditional acknowledgment of a debt, made by a party within six years before suit brought, is adjudged at law to imply a promise to pay.

In Bell v. Morrison (1 Pet., 351), Justice Story, in delivering the opinion of the court, observes, that “the rule announced in 11 Wheaton was the result of a deliberate examination by the court of the English and American authorities," and adds: “We adhere to the doctrine as there stated, and think it the only exposition of the statute which is consistent with its true object and import.” He then says: “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 the previous subsisting debt which the party is liable and willing to pay.” At the conclusion of the opinion, he says that it is to be understood that it is not unanimous, but that of a majority of the court, and that it has been principally, if not exclusively, influenced by the course of decision in Kentucky on this subject. I think particular note should be made of this remark, as Judge Story's observations in this cause have been disapproved of by two of the judges of our own State, hereafter alluded to. It is to be observed that Judge STORY introduces an element which is not, so far as my researches extend, contained in any previous authority, viz. : that the party making the acknowledgment must be “ willing to pay.” He does not say that he must express that willingness, as some judges have supposed, or whether that willingness may be inferred from his acknowledgment of the previous subsisting debt. I think the latter view must be the correct interpretation of this remark, as I am unable to find any dictum of any judge anterior to this, that in addition to the acknowledgment it was required that the party must also express a willingness to pay. In Purdy v. Austin (supra), the judgment was reversed on the ground that the acknowledgment of the defendant did not amount to an unequivocal and positive recognition of the subsisting claim in favor of the plaintiff.

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