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$ 89. This title shall not affect actions against directors or stockholders of a monied corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created, by the second title of the chapter of the Revised Statutes, entitled “Of incorporations ;” but such actions must be brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created.
Same as 2 R. S., 3d ed., 397, sec. 41.
$ 95. Where the time for commencing an action arising on contract shall have expired, the cause of action shall not be deemed revived by an acknowledgment or new promise, unless the same be in writing, subscribed by the party to be charged thereby.
This section has been well considereil, and is presented as embodying a principle which seems to us necessary, if any substantial effect whatever is to be given to the statute of limitations. As the law now stands in this state, a verbal acknowledgment of the existence of a debt which is barred by the lapse of time, or a verbal admission by which a subsisting demand is recognized, is deemed sufficient to revive the cause of action.
If the policy of the statute of limitations, as regarded by the most enlightened courts and legislators of modern times, be sound, it is difficult to perceive upon what principle its operation should be allowed to be defeated, by the kind of evidence by which it is now invariably overcome. All that is required for this purpose, is the proof of a verbal admission or aeknowledgment of a subsisting indebtedness. And upon almost any proof, tending to establish this fact, it is the habit of courts and juries to facilitate a recovery. Nay, more,-a rule has been allowed to spring up, by which a sort of judicial denial of the right of a party to avail himself of the benefits of the statute has been established. We allude to the doctrine of odious or inequitable defences-under wbich, the courts have undertaken to say, that when an indulgence or favor is applied for, it will not be granted, unless upon the condition that a plea of the statute of limitations be not int: rposed.
In such a doctrine, we conftss we can see no sound principle of justice. Independently of the answer, which to our minds is a conclusive one, that every defence which has the sanction of law, is a defence which the courts are bound, if not to encourage, at least not to discourage, we see no reason why this particular one should be viewed with disfaror. The force of the remarks of Mr. Justice Story, on the subject, before quoted, (p. 98) is too obvious to require a defence; but if any were necessary, a more conclusive answer to the objections with which this statute has had to contend, cannot be furnished, than is to be found in the remarks of one of the most fearless and enlightened reformers, who has adorned any age, (Lord Brougham,) in his memorable speech on Law Reform. In referring to the prejudice with which this statute had been assailed by the judiciary, he remarks:--- But even in cases where we have a statute of limitation, there is hardly any vestige left of the relief which it wis inten led to affordd, owing to the labors of the courts in finding means of evading its beneficial operation. It was plainly meant as an act of peace and quiet. My noble friend, (Lord Plunkett,) who presides in the court of common pleas of the sister kingdom, once said, with his usual felicity of expression, that time is armed with his scythe to destroy the evidences on which titles rest, but the lawgiver makes him more with healing on his wings to stay the ravages of his weapon. To thwart the designs of the legislature, the courts have been selting up their rules of presumption. At one time they seemed really to hold that any thing, even the simplest expression, would take a debt out of the statute of limitations; for instance, if a defendant had said—“I have paid the debt,” he was taken as admitting it, unless be could prove payment. Again, if he said, 'I owe you nothing,' the assertion was taken as an acknowledgment; and he was also required to prove an acquittance of the plaintiff's claim. The reply-Six years have ex
pired, was equally dangerous, though it was only saying out of court, what the statute itself allowed him to say in pleading. In fact, sy deeply did Lord Erskine feel the difficulties which encompassed the defendant under these efforts of judicial acuteness, that he said the only safe course a defendant could take, when his adversary sent a fishing witness, was to knock him down; for though he might be proceeded against for the assault, he retained the benefit of the statute as regarded the debt. Although of late, the current of decisions (as it is pleasantly termed,) bas set in more in an opposite direction, there is still abundant room for a provision to give this wholesome law effect. The means are obvious. Let nothing but an acknowledgment in writing take any debt out of the statute. In a word, prop the main pillar of security against stale, and unjust demands,-the statute of limitations,—by a beam from that other bulwark against perjury, the statute of frauds." '
The general views which are here so forcibly expressed, in respect to the object and design of this statute, have been adop. ted in the courts of this country, and especially in those of this state. In the first case in this state, in which that ground was distinctly assumed by the supreme court, (Purdy v. Austin, 3 Wend. 189,) it is said —« This statute has been looked upon in times past, with disfavor, by the courts in England, and their example has been too generally followed by the courts in this country. Construction formerly went far, towards depriving defendants of the benefit designed for them by it. A different and better view of this salutary statute, has since been taken, and a more correct and liberal construction is now given to it. Defences under it are not now regarded, as they once were, as discreditable, or at least are not so viewed to the same extent as formerly. It is assuming, as it was intended it should have had, the character of a 'statute of repose. If the more recent decisions, in relation to the effect of acknowledgments, are to be sustained, defendants may speak of dormant claims preferred against them, without necessarily losing the benefit of this law.” These principles are now the governing ones, in
this state, and have ever since been enforced, by a number of adjudged cases, where this defence has been interposed.
But we are still far behind the legislation of England, in giving effect to these defences, and in protecting the rights of a defendant from the dangers to which he yet stands exposed. The policy of the statute of frauds, which is invoked by Lord Brougham, in aid of the statute of limitations, is, that no one should be subjected to the hazard of the testimony of a witness in a matter resting merely in contract, but that written evidance or something of at least equal intrinsic force should be adduced, as the foundation of a liability. It is a policy as wise in the abstract, as it is sound and just in its application. The observation of every man of intelligence will attest the fact, that of all species of evidence, none is more dangerous, and none more calculated to lead to irremediable perjury, than that which relates to the admissions of a party. And if 10 this we add the unthinking prejudice, which, in the minds of many, attaches itself to the defence of the statute of limitations—a prejudice to which it is to be regretted, the courts have at times, given too decided a sanction—it will scarcely be matter of surprise, that an act, designed to protect from fraud, should have been permitted to become the passive instrument, at least, of injustice.
One of the most eminent jurists of our country, (Mr. Greenleaf,) in his treatise upon the law of evidence, (Greenl. Ev. 233,) remarks:
“ With respect to all verbal admissions, it may be observed, that they ought to be received wilh great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really usedl, gives an effect to the statement, completely at variance with what the party did actually say."
To the same effect, also, Mr. Justice Sutherland, in Malin v. Malin, 1 Wend. 652, remarks:
" It has been often said, both by judges and elementary writers, that proof of the declarations or confessions of parties, is the most unsatisfactory species of evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it, and because the slightest mistake or failure of recollection may totally alter the effect of the declaration."
And Chancellor Walworth, in speaking of the same subject, observes, in Law v. Merrills, 6 Wend. 277:
“Evidence to establish a fact by the confessions of the party should always be scrutinized, and received with caution; as it is the most dangerous evidence that can be admitted in a court of justice, and the most liable to abuse. Although a witness is perfectly honest, it is impossible, in most cases, for him to give the exact words in which an admission was made. And sometimes even the transposition of the words of a party, may give a meaning entirely different to that which was intended to be sonveyed to the witness."
The application of these principles to the rights secured by the statute of limitations, is the object of the section under consideration. Independently, however, of the intrinsic justice of a provision, such as we have proposed, it will come recommended by no ordinary weight of authority, when it is remembered that as long ago as the ninth year of George IV., it was adopted by the British parliament upon the recommendation of Lord Tenterden, then Lord Chief Justice of the Court of King's Bench, and that it has in that country been ever since deemed one of the wisest reforms in modern legislation. (9 Geo. IV., ch. 14.)
The act referred to is entitled “an act for rendering a written memorandum necessary to the validity of certain promises and engagements.” The first section (which is the only one relating to this subject,) is as follows: