JAMES MOORE, DEFENDANT BELOW, NOW PLAINTIFF IN ERROR
v.
THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF COLUMBIA, DEFENDANTS IN ERROR.
Supreme Court of United States.
*88 The case was argued by Mr. Z.C. Lee and Mr Jones for the plaintiff; and by Mr Lear and Mr Sergeant for the defendants.
Mr Lear and Mr Sergeant for the defendants in error.
*90 Mr Justice THOMPSON delivered the opinion of the Court.
The only question in this case is, whether the evidence offered upon the trial was sufficient to prevent the statute of limitation from barring the action.
The suit was founded upon a promissory note made by the plaintiff in error, bearing date the 25th of April 1816, by which, sixty days after date, he promised to pay Gilbert Docker or order five hundred dollars, value received, at the Bank of Columbia.
The note was duly indorsed to the Bank of Columbia, and in July 1825 a suit was commenced in the circuit court of the United States for the district of Columbia, upon that note. The statute of limitations, among other pleas, was interposed; and the plaintiff in the court below, to take the case out of the statute, proved by William A. Rind, that in the summer of 1823 he went into a tavern to read the newspapers, when he saw in the public room the defendant James Moore and two companions drinking, Moore appearing to be elevated with what he had drank; and whilst there, looking at the newspapers, he overheard a conversation between the defendant and his *91 two companions, in which they were bantering him about his independent circumstances, and of his being so clear of debt or of the banks, when the defendant jumped up and danced about the room, exclaiming, "Yes, except one damned five hundred in the Bank of Columbia, which I can pay at any time." No part of this conversation was addressed to the witness. The witness had been a clerk in the bank, but was then in the prison bounds in the city of Washington, and after his discharge from prison, he immediately returned to the bank in Georgetown. The witness believed the defendant knew him to be a clerk in the bank. At this time he, the witness, knew the note in question was lying over in bank, and he knows of no other five hundred dollar note of the defendant in that bank but what is paid. The plaintiffs further proved, that upon examination of their books, no other discounted note of the defendant stood charged to him at the time of the conversation referred to by the witness.
Upon this evidence the defendant prayed the court to instruct the jury that the evidence aforesaid did not import such an acknowledgement of the debt in question as was sufficient to take it out of the statute of limitations; which instruction the court refused, and permitted the evidence to go to the jury, as evidence of an acknowledgement to repel the bar of the statute. The jury found a verdict for the plaintiff. A bill of exceptions was taken to the decision of the court, and the case is brought here by writ of error.
The question as to what shall be a sufficient acknowledgement or promise to take a case out of the statute, has frequently received the attention and examination of this court, and the cases both in England and in this country have been critically reviewed. It is deemed unnecessary again to travel over this ground, but it is sufficient barely to apply some of the rules and principles to be extracted from these cases, to the facts in the one now before us.
This court, in the case of Cleminston v. Williams, 8 Cranch, 72, nearly twenty years since, expressed a very decided opinion, that courts had gone quite far enough in admitting acknowledgements and confessions to bar the operation of the statute of limitations, and that this court was not inclined to *92 extend them: that the statute was entitled to the same respect as other statutes, and ought not to be explained away. And from the course of decisions in the state courts, as well as in England, such seems to have been the general impression; and they have been gradually returning to a construction more in accordance with the letter, as well as the spirit and intention of the statute.
In the case referred to, it was laid down as a rule applicable to this question, that an acknowledgement of the original justice of a claim, was not sufficient to take the case out of the statute; but the acknowledgement must go to the fact that it was still due. And in Wetzell v. Bussard, 11 Wheat. 310, it is held, that the acknowledgement must be unqualified and unconstitutional, amounting to an admission that the original debt was justly demandable. If the acknowledgements are conditional, they cannot be construed into a revival of the original cause of action; unless that be done on which the revival was made to depend. It may be considered a new promise, for which the old debt is a sufficient consideration; and the plaintiff ought to prove a performance, or a readiness to perform the condition on which the promise was made.
This is the doctrine which prevails in the state courts generally. In New York it is held, that an acknowledgement, to take a case out of the statute of limitations, must be of a present subsisting debt. If the acknowledgement be qualified so as to repel the presumption of a promise to pay, it is not sufficient evidence of a promise to pay, so as to prevent the operation of the statute. 15 Johns. Rep. 511; 6 Johns. Ch. Rep. 266, 290.
This question again, recently (1828), came under the consideration of this court in the case of Bell v. Morrison, 1 Peters, 352, and underwent a very elaborate examination; and the leading cases in the English and American courts were reviewed, and the court say, "we adhere to the doctrine in Wetzell v. Bussard, 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."
*93 If there be no express promise, but a promise is to be raised by implication of law from the acknowledgement of the party, such acknowledgement 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 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. Any other course would open all the mischiefs, against which the statute was intended to guard innocent persons, and expose them to the danger of being entrapped in careless conversations.
The principle clearly to be deduced from these cases is, that, in addition to the admission of a present, subsisting debt, there must be either an express promise to pay, or circumstances from which an implied promise may fairly be presumed.
And this is the conclusion to which the English courts, after a most vacillating course of decisions, had come, before the late act of parliament of Geo. IV. ch. 14. This act shows, in a very striking point of view, the sense of that country of the great mischiefs which had resulted from admitting vague and loose declarations, in a great measure to set aside and make void the statute of limitations.
That act (9th May 1829) recites, that, whereas various questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgements and promises offered in evidence for the purpose of taking cases out of the operations of said enactments (statute of limitations), and it is expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof: be it enacted, &c., that in actions of debt, or upon the case grounded upon any simple contract, no acknowledgement or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or to deprive any party of the benefit thereof; unless such acknowledgement or promise shall be made, or contained by or in *94 some writing to be signed by the party chargeable thereby. Martin's Treatise on Act 9 Geo. IV.
Although this act can have no direct bearing upon the question here, it serves to illustrate and confirm the fitness and policy of the course pursued by our courts, in cautiously admitting loose verbal declarations and promises to take a case out of the statute of limitations.
If the doctrine of this court, as laid down in the cases I have referred to, is to govern the one now before us, the facts and circumstances given in evidence fall very far short of taking the case out of the statute of limitations. There is no direct acknowledgement of a present subsisting debt; no express promise to pay; nor any circumstances from which an implied promise may fairly be presumed. The declarations of the defendant below were vague and indeterminate, leading to no certain conclusion, and at best to probable inference only; and indeed, if unexplained by any other evidence, they were senseless. It is left uncertain even whether the conversation referred to the note in question. The evidence that this was the only five hundred dollar note of his lying over in the bank, might afford a plausible conjecture that this was the one alluded to. But that is not enough, according to the rule laid down in Bell v. Morrison; nor is there any direct admission of a present subsisting debt due. The epithet which accompanied the declaration, would well admit of a contrary conclusion; and that there were some circumstances attending it that would lead him to resist payment. The assertion of his ability to pay, is no promise to pay.
The whole declarations, taken together, do not amount either to an explicit promise to pay, made in terms unequivocal and determinate, or disclose circumstances from which an implied promise may fairly be presumed; one or the other of which this court has said is necessary to take the case out of the statute.
The court below therefore erred in not giving the instructions prayed for by the defendant.
The judgment must accordingly be reversed, and the cause sent back, with directions to issue a venire de novo.