DECISIONS. munity of interest between those jointly bound by a contract, JUDICIAL that the admission of one is the admission of all.95 And for a similar reason, the admission of a wife, if she have been entrusted with the management of the business out of which the debt arises,96 or of an agent,97 will be sufficient. But an acknowledgment by a wife, after marriage, of a debt contracted before marriage, will not take the case out of the statute.98 And where two made a joint and several promissory note, and one of them died, and two years after his death the other made a payment on the note on his own account, it was held that this was no evidence of a promise by the executors of him who was dead.99 mise will be an indirect As the admission of a party charged with a liability, is A new proevidence of a very high degree, the law will imply a promise implied from from it, although it be couched in vague, indirect, evasive, or admission: ambiguous terms. But what in such instances amounts to an admission of a subsisting debt, is a question of fact for the jury, 100 2 The books are full of cases where such admissions Instances: have been held sufficient. As where the defendant, on being arrested, promised to meet the plaintiff for the purpose of settling the accounts, if the plaintiff would give time for payment. So where the defendant promised to examine into the demand, and see whether it had been paid. So where he said that he supposed the notes had been paid, but that if they had not been, that he would pay them, and he thought he could make that appear: or where he said; "prove it, and 35 2 Doug. 652. 14 East. Rep. 599. 1 Greenleaf, * 2 Esp. Rep. 511. & n. 2 163. Cowp. 548. Bull. N. P. 149. DECISIONS. JUDICIAL I will pay you:"5 or, "if others pay, I will:" or, "what an extravagant bill you have sent me ;" or, "if you had presented the protest, it would have been paid." So where the debtor referred the creditor to his trustee. But a debt barred by the statute, is not revived by a clause in a debtor's will, ordering all his just debts to be paid ;10 nor by a devise for the payment of debts generally. And in some cases it has been held, that an acknowledgement that the claim was originally just, is insufficient to take the case out of the statute, unless it also afford evidence that it is still due.12 but not so as to do vio lence to the Inission ta whole ad ken together. 11 The law will not, for the purpose of implying a new promise, allow violence to be done to the import of the whole admission taken together. Therefore, where the acknowledgment is qualified in a way to repel the presumption of a promise to pay, it is not sufficient to take the case out of the statute.13 As where the plaintiff, a collector of the customs, claimed that he had a legal right to a moiety of one third of the amount of the proceeds of certain vessels seized by him, and condemned after his removal from office, which proceeds were received by the defendant his successor, and also to a part of the commissions, on bonds received by him, and collected by his successor: The court state the case as follows: "The proof is very satisfactory, that the defendant received the commissions on bonds taken by the plaintiff whilst in office; but the defendant constantly asserted a right to retain what he had received, on his construction of the law. Stevens' 5 Ld. Raym. 389. 421. Salk. 29. Hawks. 304. Hardin, 17. 6 Munf. 5 Mod. 425. 12 Ib. 223. 6 4 Camp. 185. 7 Peake's C. 93. $ 1 Stark. 7. 91 Esp. Rep. 435. 450. 2 Hen. & Mun. 124. 12 8 Cranch. 72. 11 Wheat. 309. 2 Pick. 368. 13 14 Serg. & Rawle. 195. 5 Bin. 573. Hardin, 301. 1 Bibb. 443. 3 10 1 Binney, 209. see 1 Hayw. Ib. 269. 3 Greenl. 97. 2 Browne, 243, contra. 16 John. Ch. Rep. 293. 1 35. 20 John. Rep. 576. DECISIONS. evidence proves the defendants admission of the receipt of the JUDICIAL moneys claimed; and that the same had not been paid over to the plaintiff; and that the defendant said, that if the plaintiff had a claim in law or equity for the forfeitures or commissions, he would submit it to a reference, or he would compromise the business; and that in his opinion, the plaintiff had no claim in law or equity, for the commissions or forfeitures and that if he had, he, the defendant would not have left the business so long unsettled. That the plaintiff had frequently written and spoken to him on the subject, but he considered that he was not entitled to the forfeiture, or the commissions; but if the witness would convince him, that the plaintiff was entitled, in law or equity, to the forfeitures or commissions, he would submit it;", and the court say, "it would be doing violence to this admission to say, that there is evidence from which a promise may be inferred, to pay a demand; the justice and equity of which, as well as the defendant's liability to pay it, is utterly denied.' 9914 And where, on two notes being shown to the defendant, he admitted that he executed them, but observed that they were outlawed, and that he meant to avail himself of the statute of limitations, it was held not to take the notes out of the statute.15 Where the defendant, on being arrested on a note, said he owed the plaintiff the money and intended to have paid him, but that as he had taken ungentlemanly steps to get it, he would keep him out of it as long as he could: it was held that the admission amounted to this, that he would not pay until compelled by law, and was insufficient.16 And where the admission is made during a negotiation for a compromise, it cannot be used against the defendant.17 14 Sands v. Gelston, 15 John. Rep. 511. and see 13 John. Rep. 288. 15 11 John. Rep. 146. 4 M & S. 457. 7 Taunt. 608. 1 Moore, 344. 16 9 Serg. & Rawle, 128. 5 M. & S. 75, contra. 17 13 John. Rep. 288. 8 Ib. 408. JUDICIAL DECISIONS. Where the action is brought upon a contract to do a particular act, an admission within six years of a breach, will not the breach of take it out of the statute.18 And in the case of trespass,' 101 Admission of a contract or of a tort or and other actions of tort,19 it is not sufficient to prove an ac trespass will not take the the statute. case out of knowledgment of the trespass or tort, and a promise to make compensation. An acknowledgment of negligence, made within six years, will not support a special action of assumpsit, founded on negligence, which took place more than six years ago;20 although in fact, the negligence was first discovered within the six years; and a fraudulent concealment of the negligence until within the six years cannot be replied to a plea of the statute.21 18 2 Camp. 157. 160. 101 1 B. & A. 92. 19 3 Har. & M'Hen. 122. 20 John. Rep. 277. 20 3 B. & A. 632. 21 20 John. Rep. 33. CHAPTER II. OF THE SUPREME COURT, INCLUDING THE CIRCUIT COURTS OF THE SECTION I. OF THE SUPREME COURT. 141 by the con The supreme court may be considered as established by the Established constitution of the state, which declares, that, "The supreme stitution. court shall consist of a chief justice, and two justices; any of may hold the court."22 whom and powers; the constitu The jurisdiction and powers of the supreme court are not ex- Jurisdiction pressly defined or fixed by the constitution of the state. The above provision of the constitution, however, recognises the court, and the jurisdiction and powers which it found it exercising. The first constitution of the state, under which its govern-defined by ment was organized on losing its colonial character, also recog- tion, nized the court as it then existed, by providing that the judges should hold their offices during good behaviour, or until they attained the age of sixty years.23 And the revised statutes and statutes, have declared what was before a matter of implication and inference, by providing, that "The supreme court shall possess the the to the colo powers, and exercise the jurisdiction, which belonged to by reference supreme court of the colony of New York, with the ex- nial supreme court. |