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Opinion of the Court, per DAVIES, J.

In Stafford v. Bryan (3 Wend., 535), SUTHERLAND, J., in delivering the opinion of the Court of Errors, says: “An acknowledgment, which is to have the effect of taking a demand out of the effect of the statute of limitations, ought to be clear and explicit in relation to the subject of the demand to which it refers. The acknowledgment or new promise is to be affirmatively established by the plaintiff.” He adds : “ Although I cannot yield my assent to all the points decided in that case (Bell v. Morrison), nor to all the reasonings and positions advanced by the learned judge who delivered the opinion of the court, the general views to which I have assented appear to me to be sound and impressive." In Dean v. Hewitt (5 Wend., 257), MARCY, J., remarks, that “the statute of limitations proceeds upon the presumption of payment; a recognition of the existence of the debt, after the statute has attached, revives the remedy which was lost, but the cause of action is the same as it was before the remedy. This court has always considered the acknowledgment or new promise as a continuance of the old promise.

The acknowledgment rebuts the presumption of payment; and when made before the statute attaches, has the same effect as though made afterwards. It keeps alive, if I may so express it, the remedy. It cannot be said that the new promise either revives the cause of action or the remedy; it only continues the latter.” He adds, that he is aware that some of the positions there stated conflict with the views of Mr. Justice STORY, as expressed in Bell v. Morrison, but we cannot yield to these views, and give full effect to them, without unsettling principles that have been so long established as to entitle them to be evidence of the laws of this State.

In Hancock v. Bliss (7 Wend., 267), Chief Justice SAVAGE said, the acknowledgment must however be explicit, and without a denial of the equity or legality of the demand: hence if the defendant denies the justice of the demand, or reposes himself upon the statute, a promise will not be presumed.

In Patterson v. Choate (7 Wend., 445), the court, by SUTH

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Opinion of the Court, per DAVIES, J.

ERLAND, J., held that an acknowledgment of an existing indebtedness was sufficient to raise a new promise. There the witness first stated what the defendant said, as follows: That “the balance as exhibited by their books of account was due to the plaintiff at the time of the dissolution of the copartnership, and had not been paid to his knowledge.” Upon being interrupted by the plaintiff's counsel, he said the expression used by Patterson was that the balance was due at the time of the dissolution, and still is due, as witness thought; it might have been, that it was then due and had never been paid; either version of it amounts to a clear and explicit admission of a subsisting indebtedness.

In Gailey v. Crane (21 Pick., 523), the Supreme Court of Massachusetts says, the doctrine laid down in the case of Bangs v. Hall (2 Pick., 368), was well considered, has since been tested by experience, and is undoubtedly sound and wise. It has been everywhere acknowledged as sound law, (citing a large number of authorities to sustain this position). The court further say," the principles there laid down are, that to take a debt out of the statute of limitations there must be either an express promise to pay, or an unqualified acknowledgment of present indebtedness. In the latter case the law will imply a promise to pay."

In Allen v. Webster (15 Wend., 284), SAVAGE, Ch. J., after reviewing all the authorities, says: “Whatever therefore may be the true philosophy of the rule, and learned judges have differed on that subject, yet since the case of Sands v. Gelston, there has been no dispute as to what the rule in fact is, to wit: that to revive a debt barred by the statute of limitations, whether the statute theoretically operates upon the debt itself, or upon the remedy only, there must be an express promise or an acknowledgment of a present indebtedness, a subsisting liability, and a willingness to pay.” This last remark about a willingness to pay has no foundation but Judge Story's observation in Bell v. Morrison, and which had been disapproved of by two of our judges; GARDNER, J. states the rule as he is inclined to think it is in Wakeman v. Sherman (5 Seld., 91), in these words: “That to revive a demand thus barred

Opinion of the Court, per DAVIES, J.

there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances, that such a promise may be fairly implied.” And this case also enunciates the rule laid down in many other cases, that the acknowledgınent of existing indebtedness or the promise to pay must be made to the party to whom the debt is due, or to his agent: an acknowledgment or promise to a stranger will not answer.

As has been seen from the remarks of Chief Justice SPÆNCER in Sands v. Gelston, something more has been required to establish a debt against a bankrupt, which has been discharged by his certificate, or a discharge from his debts under an insolvent law. In the latter case the debt has ceased to exist. It has been extinguished, and though the moral obligation notwithstanding remains to pay it, and is held to be a good consideration for the promise to pay it, yet there must be a new promise equivalent to a new contract. In the case of a debt barred by the statute of limitations, we have seen that the debt is not discharged, but the remedy by action is only taken away or suspended until the debt is revived. In the case of Roberts v. Morgan (2 Exch., 736), Eyre, Ch. J., says a debt barred by a certificate, under a commission of bankruptcy by a new. promise to pay it, becomes a new debt. Lord MANSFIELD also says, when there has been a new promise after the discharge, the bankrupt is liable as on a new contract. (Doug., 192). The moral obligation uniting to the new promise makes. what he calls, in the case of Truman v. Fenton (Cowp., 544), "a new undertaking and agreement."

In Dupuy v. Mount (3 Wend., 135), MARCY, J., says: “The bare acknowledgment of a debt barred by the statute of limitations is held to revive it; but an acknowledgment of a debt from which the defendant has been discharged, be it ever so explicit, gives no chance of action.” After referring to the authorities also alluded to, he says: “The authorities clearly show that the new promise is the contract upon which the action against the defendant must rest. The old debt has no further connection with this suit than what arises

Opinion of the Court, per DAVIES, J.

from the circumstance that it is resorted to for the purpose of furnishing a consideration for the promise, by reason of its moral obligation after its legal obligation is destroyed by the discharge. The liability, therefore, of the defendant is on the new contract."

A protracted struggle has been maintained in the courts, on the one hand to protect infants or minors from their own improvidence and folly, and to save them from the depredations and frauds practiced upon them by the designing and unprincipled, and on the other to protect the rights of those dealing with them in good faith and on the assumption that they could lawfully make contracts.

Much discussion has been had in the books, by eminent and learned judges, whether the contracts of an infant were void or voidable, and the earlier decisions were that such contracts were void. And the method adopted by the courts to protect an infant against the effects of his own weakness, has been to consider his acts as not binding. (Bingham on Infants, 5). Miserable (says Lord MANSFIELD, in 3 Burr., 1801), must the condition of minors be, excluded from the society and commerce of the world, deprived of necessaries, education, employment and many advantages, if they could do no binding acts. Great inconvenience must arise to them if they were bound by no act. The law, therefore, at the same time that it protects their inability and indiscretion from injury, through their own imprudence, enables them to do binding acts, and without prejudice to themselves, for the benefit of others. And in that case (Couch v. Parsons), it was expressly decided that an infant's conveyance, by lease and release, was voidable only and not void. This decision has been considered by many judges and lawyers as unsound, and particularly by Mr. Preston, in his work on Conveyancing, in which he says, “no lawyer of eminence has thonght it safe to follow that decision in practice. To admit, indeed, that such a decision is law, is to confound all distinctions and to oppose all authorities on this head” (2 Preston on Con., 248); and at page 375 he also says: “It would be well for every lawyer that such a decision had never existed." These

Opinion of the Court, per DAVIES, J.

views of this learned author show how firmly implanted in the legal mind was the doctrine, that the acts and contracts of an infant were void and not voidable.

We shall see that the modern doctrine is fully in harmony with that laid down in Couch v. Parsons, and that such is now the well and firmly established rule of law. A void act never is nor ever can be binding, either on the party with whom it originates or on others. All who claim through or under it must fail, and it never can, at any time or by any means, be confirmed or rendered valid. A voidable act is binding on others, until disaffirmed by the party with whom it originated: it is capable, at a proper time and by proper means, of being confirmed or rendered valid. (Bing. on Inf., 7.)

I think it will be found, on a careful examination of the cases and the current of decision by learned judges, that the doctrine of an express promise by an infant, after his attaining his majority, being necessary to establish a contract as binding made by him during infancy, originated mainly from two sources: first, the notion of the English judges that it was their peculiar duty to protect infants from their own acts of imprudence and folly; and, second, that their contracts being wholly void, something must be done equivalent to a new contract after coming of age to make that legal and effective which before had no force or existence. And from this latter consideration, I think, another error had its origin into which so many judges have fallen, that, to make binding a contract of an infant after he attained his majority, acts must be done of an equal character or degree which a bankrupt discharged from a debt must perform to give new life, vigor and vitality to a debt discharged and canceled by his bankrupt or insolvent discharge. The promise to pay a debt discharged under an insolvent law, as we have seen, becomes a new contract. In the case of Roberts v. Morgan (2 Exch., 736), EYRE, Ch. J., says a debt barred by a certificate under a commission of bankruptcy, by a new promise to pay it, becomes a new debt. Lord MANSFIELD also says, when there has been a new promise after the discharge, the bankrupt is



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