Cross v. Conner

The opinion of the court was delivered by

Royce, J.

The force of the first clause in the defendant’s admission, — ‘it was a just debt and ought to have been paid,’ must depend very much upon the question whether these were the words of the witness, which he employed in detailing the conversation, or were the identical words spoken by the defendant. In the former case we should understand that the defendant admitted it a just debt, and one which ought to be paid, at the time he was speaking of it. For whilst the witness would necessarily express himself in the past tense; because he was speaking of a past transaction, the defendant might more properly be understood to have spoken in the present tense. And if so, his expressions would contain a most explicit and unqualified acknowledgement of the debt as then justly due. From such an acknowledgment a promise to pay the debt would, of course, be implied. And in that case his additional declaration, that he would pay half the amount during the following winter, if the holder of the note would give it up to him, would rather import a willingness to make an extra effort in favor of this particular creditor, than any intended restriction of his liability for the whole amount.

But the counsel on both sides have treated this former part of the admission as the very words of the defendant; » • • and considering all his declarations together, this^seems to be the more natural and consistent way of understanding it. We are, therefore, to consider that the defendant, instead of saying that the debt was then justly due, and ought to be paid, merely said that it was originally or had been a just debt arid ought to have been paid. But this is no more than a frank man would be apt to say of any debt fairly contracted, which had been long barred by the statute. Such expressions do not, by any just implication, import a waiver of protection under the statute. • They are consistent with this kind of defence, because they relate to a time past, and do not conflict with the present operation of the statute. It was laid down by Ch. J. Marshall, as long since as the 8 Cranch, ‘ that it is not sufficient, to take a case out of the 1 statute, that the claim should be proved, or be acknowl- ‘ edged to have been originally just; the acknowledgment ‘ must go to the fact that it is still due.’

It is contended, however, that where no pretence of payment, or other matter of discharge, is set up, an admission that the debt was once due sufficiently implies that it remains unsatisfied. This is doubtless a legitimate inference, and one that may always be drawn in the absence of evidence to repel it. But, under the more recent constructions of the statute, it is by no means tantamount to an actual admission that the debt is still due. This, standing alone, is considered a recognition of the debt as still binding upon the party ; whereas, a mere admission that it was once due, though it may justify an inference that no payment or discharge has intervened, does not amount to such a present recognition, and cannot prevent the operation of the statute.

Judgment affirmed.