six years, it may be accepted as prima facie evi- | other, and even partners, whose agency has dence of the fact of payment by some one; this ceased by dissolution, cannot bind each other by is its whole effect. a new promise or acknowledgment. (Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penna. 135; Houser v. Irvine, 3 W. & S. 347 ; Schoneman v. Fegley, 7 Barr, 433.) The theory of the law, says GIBSON, C. J., is not that the old promise is revived, but that the subsequent confession of the debt is evidence of a new one, and he who has no authority to act for another cannot bind him by acknowledging that he is indebted or by expressly promising for him that he shall pay. (Houser v. Irvine, supra.) The force of Coleman v. Fobes is sought to be broken by

When this entry is used to renew a debt barred by the statute, by what kind of legal reasoning can an entry which specifies no one be made to cover this defendant, or how can a payment be imputed to one who is not known or shown to have made it? If the creditor can thus, by a general entry designating no one making the payment, bind all and prevent the bar of the statute, he does by his entry what the party who made the payment cannot do, he has constituted him as the agent of others to make an acknowledgment having the force of a new promise to pay the re-stating that the affirmative evidence of payment sidue.

This proves the unsoundness of the position that the entry affords a prima facie presumption, calling the defendant to repel it. Evidence to be prima facie must apparently apply to the defendant.

ence is drawn is his act, is to raise a legal inference from that which is or may be the act of another. This is plainly contrary to the undoubted and well-settled doctrine of the statute, that its bar can be set aside only by the acknowledgment of the party himself who pleads it. Hence, to raise a new promise, or its equivalent acknowledgment, from a prior joint duty to pay is to rest the evidence of a new duty to pay upon a duty already barred by the statute.

by the surety proves that the principal did not acknowledge the debt. But that is a concession to the weakness of this case. It admits that the party who did not make the payment is not bound; and yet, without any evidence that he did pay, imputes the payment to him for the very But this entry, which is the only evidence, ap- purpose of barring the statute, when the unplies not to him, and to assume that he is bound doubted rule is, that a barred debt cannot be by it is to assert that he, whoever it was who taken out of the statute, unless by the clear unmade the payment, is authorized to make an ac- qualified and precise acknowledgment of the knowledgment binding on him to bar the statute. debtor himself, or by a new promise to pay. This is palpably unsound. On principle the case Now to impute an acknowledgment to him, withis with the defendant. But to sustain the deci-out evidence that the act from which the infersion, the case of Coleman v. Fobes (10 Harris, 156) must be overruled. That case in express terms overruled Zent's Administrator v. Heart (8 Barr, 337). Coleman v. Fobes was a well considered case, and contains a searching examination of the authorities as well as the principles applicable to the statute. It is also on all-fours with this case. The entry on the note was in these words: "Received, Smethport, January 18, 1840, on this note, twelve dollars eighteen cents." In the parol proof it was shown that It confounds the effect of payment by him who the payment was made by a surety on the note, made it with the evidence which must be given and the Court below held that the payment took by the creditor to raise a new promise by him away the bar of the statute as to the principal. who did not make it. It is from the act of payThis Court reversed the judgment, holding that ment only an acknowledgment is inferred. It even the surety was not the agent of the princi- requires a second inference to reach him who pal to make an acknowledgment to take the case did not make the payment. This is not only out of the statute; and that the acknowledgment contrary to the doctrine upon the statute, that its stands on the footing of a new promise, which bar cannot be removed except by a clear, uneone joint debtor cannot make for another. Cole-quivocal, and certain acknowledgment, but conman v. Fobes is, more ver, wholly at variance trary to the general rule of evidence, that an inwith the doctrine of a prima facie presumption. ference cannot be founded on an inference. For if a bona fide payment by a surety, accepted and indorsed by the creditor in general terms designating no one, cannot raise an acknowledgment by the principal to take the case out of the statute, much less can a mere indorsement of payment designating no one raise an acknowledgment of each and all the debtors, to stand as the equivalent of a new promise to bar the stat


Mere joint promisors are not the agents of each

It is said, if such an indorsement will not bind both, it will bind neither. True, this is only the legitimate effect of the statute which creates the bar, and then how can an uncertain and equivocal indorsement by the creditor have a greater force than an uncertain or equivocal acknowledgment by the debtor? Neither can toll the statute. It can be tolled only by an express promise or an acknowledgment so certain and unequivocal that not only the debt but the debtor

is made certain. The position that a general en- | to be made under circumstances which indicate try of payment by the creditor, designating no an actual intention to pay the debt, not a mere one, will be the evidence of a new promise to loose declaration." (McKinney v. Snyder, 28 pay, after the duty to pay is barred by the statute, P. F. Smith, 500.) Here Clark never said or of all who subscribe to the original duty to pay, did anything. conflicts with all the modern decisions upon the necessity of certainty in the acknowledgment. The rule is forcibly stated by Justice SHARSWOOD in Johns v. Lantz (13 P. F. Smith, 324). "The decisions of this State (he remarks) apply very strict rules to acknowledgments to take a case out of the statute of limitations, and very rightly


We mean to adhere to them in letter and spirit. The present state of the law is well summed up by our brother AGNEW in one of the latest. In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct, and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation." Citing Wolfensberger v. Young (11 Wright, 516). The same rule is stated by Justice READ in McClellan's Executor v. West (9 P. F. Smith, 487). "It must be express acknowledgment of a subsisting debt. Nothing but an unequivocal admission of indebtedness is such evidence of a promise to pay as will take a case out of the statute of limitations."

Now, take the case before us a note drawn by two, or it might be half a dozen persons, and payment of five dollars indorsed designating no one. What is more uncertain or equivocal? As a fact on which a new promise is to arise, who paid it? This is not merely equivocal, but unknown. What right has a jury from an unknown fact to infer a certain and distinct conclusion? All the authorities agree that the presumption of a promise arises on the act of payment, not the duty of payment. The duty of payment arises on the original promise, but non constat who performed this duty, and this is the only basis of a presumption. In this case, who made the indorsed payments? Who says Clark did? He furnished no evidence against himself; it is no legal conclusion. If it be, the law removes the bar of the statute by a legal inference, and not the party by his promise or acknowledgment. The effect is the law raises the new promise, and not the only party who can waive the bar. Yet we are asked to hold that the creditor's uncertain act, his loose entry, is a clear, distinct, and unequivocal acknowledgment or new promise of Maris T. Clark, who is connected with the efficient act by no proof whatever, and say to him, though discharged by lapse of time, "Prove your self clear." This is a plain inversion of the doctrine of the statute that there must be an agency to make and to receive the acknowledgment or promise.

To be binding (says Justice PAXSON) it ought

Many cases furnish illustrations of the rule. One will suffice, Weaver v. Weaver (4 P. F. Smith, 153). All proclaim the sound doctrine that the statute is not to be frittered away by mere presumptions.

The statute has no favor with a jury which seldom rises to the comprehension of the philosophy that partial evil is often universal good. Judgment reversed, and a venire facias de novo awarded.

Opinion of the Court by AGNEW, C. J. SHARSWOOD, MERCUR, and PAXSON, JJ. dissent.

Dissenting opinion by PAXSON, J.

Ferdinand H. Groce and Maris T. Clark, the defendants below, gave to Eli W. Hinkson their promissory note for four hundred dollars on the 30th of March, 1867, payable with interest one year after date. Seven indorsements were made on it, commencing on the 25th of March, 1868, and ending on the 31st of March, 1873, the first five of which being each for one year's interest; the sixth being for one hundred and two dollars and fifty cents, and the seventh being for eighteen dollars. All the indorsements were in the handwriting of Mr. Hinkson.

That they were made within six years from the maturity of the note was certain, for the statute had not closed when Mr. Hinkson died. Two of the indorsed payments, those of the 9th of April, 1872, for twenty-four dollars, and of the 31st of March, 1873, for eighteen dollars, were shown by separate receipts produced on the trial to have been made by Groce. There was no evidence to prove by whom the other payments had been made. The facts were submitted to the jury with instructions to render a verdict for the defendant, unless it should be found that he participated in making the payments; and in case it should be so found, then to render a verdict for the plaintiffs.

Outside of the note and indorsements, the only essential fact established at the trial was, that Groce had taken separate receipts for two of the payments. As the debt was jointly due from Groce and the defendant, and as the duty of payment rested equally on both, it was thought by the Court below that the jury should be left to ascertain from all the evidence, such as it was, whether the defendant participated in making the payments other than those shown to have been made by Groce alone. The objection is made that it was error to submit the question to the jury. It is insisted that on the admitted facts, the case was

exclusively for the Court, and that, in the ab- | five were made. The two for which Groce took sence of affirmative evidence of any action on the part of the defendant, a verdict should have been directed in his favor.

receipts are conclusive against him. He makes no contest and has confessed a judgment. The only issue is made by the defendant. The question is presented whether the doctrine of Coleman v. Fobes shall be so extended as to treat the five unexplained indorsements as proving nothing against either of the promisors.

Judge KENNEDY held in Bear v. Patterson (3 W. & S. 233), that, prima facie, all the obligors in a bond are principals, and for present purposes these promisors are to be so treated here. While the statute of limitations was running against the note, Groce and the defendant remained jointly and equally liable, each subject to an equal duty to the holder, and each equally bound to pay. The unexplained indorsements are evidence of payment made within six years. Payments by whom? It is urged on behalf of the defendant, that, in order to affect him with the payments, it must be shown affirmatively that in point of fact he did pay, and that in the absence of such proof the indorsements are inoperative as to him.

It is a well-settled rule that an indorsement on a note of a payment on account, in the handwriting of the holder, proved to have been made within six years from the maturity of the note, is evidence which will prevent the operation of the statute of limitations. (Addams v. Seitzinger, 1 W. & S. 243.) "The rule," in the language of Chief Justice GIBSON in that case," is not only essentially a good one, but it is no more than an extension of the principle which allows entries or memoranda prejudicial to the interest of the writer, where his testimony cannot be had, to be evidence of a fact in a controversy between strangers: thus substituting, for the sanction of a judicial oath, the more powerful sanction of a sacrifice of self-interest." From the time when Whitcomb v. Whiting (2 Doug. 652) was decided until the enactment of the statute of 9 Geo. IV. ch. 14, it was held with substantial uniformity in England, that when parties had a joint interest in a matter in suit, whether as plaintiffs or The fallacy of this theory is manifest. Were defendants, an admission made by one was, in he the only promisor, it is clear, under Addams general, evidence against all. By a payment, v. Seitzinger, supra, that the indorsements therefore, made by one of several joint debtors, would toll the statute. From the fact of payall were equally affected. (2 Greenleaf's Evi-ments upon account of the note, of which the indence, $$ 441, 444.) This doctrine was adopted in its full extent by this Court in Zent's Executors v. Heart and Eyster (8 Barr, 337). That was an action on a joint and several promissory note of a principal and surety in which the defendants severally pleaded non assumpsit infra sex annos. The principal had paid the interest regularly within six years as it had accrued, and it was held that such payments by the principal were constructive acknowledgments of the debt by both him and the surety, and as such operated as a new promise by both to pay according to the terms of the note. The rule in this State was changed however, by the decision of Coleman v. Fobes (10 Harris, 156), by which Zent's Executors v. Heart and Eyster was distinctly overruled, and in which it was held that a payment on a promissory note by a surety, made while the statute was running, did not have the effect to revive the obligation of the instrument as against the principal.

But the change that has been made in the law by Coleman v. Fobes, has not affected the rule laid down in Addams v. Seitzinger, nor, it is conceived, can it have any controlling bearing on a case like this. A payment on a note given by a single maker, proved by the indorsement of the holder within six years, still preserves it from the bar of the statute of limitations. Here there are two joint promisors, and, of the seven payments indorsed on the note, there is no proof by whom

dorsements are evidence, the presumption arises that said payments were made by the promisor. Such presumption rests upon the fact that he is liable to pay, and it is, therefore, his duty to pay. It is, however, a mere presumption, and liable to be rebutted. He may, if he can, show that the payment was made by some one else; a mere stranger to the contract, or that the holder, for some purpose of his own, made the indorsements without payment, in either of which cases the presumption would be overthrown, and the indorsements would not affect him. But the burden of proof is upon him, and until he overthrow the presumption by evidence, it is sufficient to go to a jury, and to sustain a verdict. How is the case altered by the fact that there are two joint promisors? The indorsements are still evidence of payment within six years.

There is the same presumption that the payments were made by the person or persons whose duty it was to pay. That duty resting upon each alike, the indorsements were for the benefit of each, and each must be presumed to have contributed to the payments. It is for the defendant, if he can, to rebut this presumption. The onus of proof is upon him. How then can we say as a matter of law that the indorsements raise no presumption of payment by Clark? It was his note and his promise. Nor was it the less so, cause another was joined with him in liability. It is illogical to hold that an indorsement of a pay


ment within six years is evidence of such payment | pay, that each performed his duty, and conby a single promisor, and not evidence of pay-tributed to the payment. It is not the case of a ment where there are two promisors.

The indorsements, whether there be one or two promisors, raise the presumption that the payments were made by the persons whose duty it was to pay. It is only prima facie, it is true, but it is enough to go the jury, and throws the burden of proof upon the defendant. It is true that, if the indorsements had declared the payments to have been made by either of the promisors, the other, under the authority of Coleman v. Fobes, would have been discharged; and that is the strongest way in which the oppo

presumption based upon a presumption, but of a presumption founded upon an admitted fact. For the reasons given I am of opinion that the learned and able Judge of the Court below was right in allowing the evidence to go to the jury, and, therefore, dissent from this judgment.

site view to that now taken can be stated. But Common Pleas--Equity.

Dec. 9, 1878.

C. P. No. 4.
Eichart v. Grayson.
Equity jurisdiction-Account-Statute of frauds
-Resulting trust.

Sur exceptions to master's report.
Hearing on bill, answer, and proofs.

the reason would be that there would be affirmative evidence of the non-participation of one of the promisors. There would be no presumption against the one not participating, and nothing for him to rebut. It is begging the question to say that the case fails by reason of the absence of direct proof of an actual payment by Clark. Grant that the indorsements fall short of the full measure of such proof. Such would be the case if he were the only promisor. It is true of every indorsement which omits to name the party paying. There is a presumption; nothing more, a presumption of fact which the defendant may rebut. This is no departure from Coleman v. Fobes. Care must also be taken not to confound this case with Shaffer v. Shaffer (5 Wright, In 1868, the complainant purchased certain 51); Wolfensberger v. Young (11 Id. 516); lands in pursuance of a conversation held by Weaver v. Weaver (4 P. F. S. 153); McClel- him with his sister Mary A. Grayson, then unland's Executors v. West (9 P. F. S. 487), and married, the defendant, in which conversation Johns v. Lantz (13 P. F. S. 324). In each of she agreed that complainant should purchase said these cases the question was whether the acknowland, and hold it for their joint benefit; that each ledgment was sufficiently clear and distinct to take the case out of the statute. Upon this point the law is sharply and clearly defined.

This was a bill for an account and for the recovery of moneys alleged to have been expended by the plaintiff at the request and for the benefit of the defendant. The facts as they appeared by the master's report were as follows:

should pay one-half of the purchase money and expenses; and acting upon this the defendant paid $300, as she said "to bind the bargain." The rule is distinctly pointed out, and in the This agreement was not reduced to writing. case last cited, Mr. Justice SHARSWOOD intimates Complainant took title in his own name and paid pretty strongly that it would not be departed the expenses up to 1871. On Jan. 21, 1871, from. In that we all concur. But this record the defendant, having always spoken of the land presents no question in regard to the sufficiency as belonging in part to her, demanded a deed for of the acknowledgment. There are two ways by her half interest and such deed for an undivided which a note may be taken out of the statute. half was executed Feb. 10, 1871. From that time One is by a clear and distinct promise to pay the both parties contributed toward the expenses as debt, another by a payment made within six they were incurred, until 1874 when the land was years, which is held equivalent to a promise. It actually divided and deeds executed and deis the latter I have been considering, and it in-livered. Such being the facts the master reported volves no question of the sufficiency of the ac- as matter of law that as the agreement for the knowledgment. The contention is as to who purchase of the land fell within the statute of made the payment, and in this view the cases re-frauds, the defendant took no title which she ferred to have no direct application. could enforce against the complainant, and she The indorsement of payments upon the note was therefore not liable for moneys expended having been proved to have been made within prior to the execution of the deed for the undisix years is a fact from which, as before stated,vided interest on Feb. 10, 1871; and that the the law presumes payment. It does not presume account prayed for should therefore run only that A. paid to the exclusion of B., but, both from that time. being jointly liable and under a joint duty to

Exceptions were filed on both sides.

R. P. White, for the plaintiff.

Common Pleas-Law.

The master has erred in overlooking the doctrine of resulting trusts. If he finds as a matter of fact that the defendant advanced part of the purchase-money, a resulting trust must of necessity arise in her favor. The contract for the sale of the land has been executed, and the statute has C. P. No. 1. nothing to do with the recovery of money advanced on an account.

Lynch v. Cox, 11 H. 265.
Beck v. Graybill, 4 C. 66.
Lloyd v. Carter, 5 H. 216.

Nixon's Appeal, 13 Sm. 282.

A part performance will at any rate give validity to a contract otherwise void because within the statute.

Dougan v. Blocher, 12 H. 28.

Milliken v. Dravo, 17 Sm. 230.

The statute does not affect either a recovery

Nov. 30, 1878.

Dundore & Co. v. Dobson.
Affidavit of defence-Characteristics of instru-
ment within the affidavit of defence law-
Averment supplementing copy filed.

Rule for judgment for want of a sufficient affidavit of defence.

The following is a copy of the instruments on which suit was brought :

Camden Iron Works, Camden, N. J., June 20, 1878. JOHN and JAMES DOBSON

of damages or the recovery of the money actu-four thousand dollars (4000) upon completion and accep

ally paid.

Bell v. Andrews, 4 Dall. 152.
Meason v. Kaine, 13 Sm. 335.
J. D. Bennett, for the defendant.

Payment of the purchase-money will not alone
take the case out of the statute of frauds; and the
defendant cannot be charged with costs incurred
before she had interest.
Parker v. Wells, 6 Wh. 153.
Myers v. Byerly, 9 Wr. 368.
Where the plaintiff has an adequate remedy at
law, he has no standing in equity. The bill does
not allege the account to have been mutual or
complicated; there is no discovery sought; nor
any matters involved which a jury could not un-
ravel with ease. It is inequitable and unjust to
force the expense of equity proceedings upon the
defendant. There is a plain remedy by assump-

Borrell v. Borrell, 9 C. 492.
Dech's Appeal, 7 Sm. 467.
Brightly's Digest, 730.

C: A. V.

Gentlemen: You will please pay to F. Dundore & Co. tance of the Gas Holder that we are now building for your firm, and oblige. Yours, respectfully, JESSE W. STARR & SON. Phila., June 21, 1878.

Gents: We cannot accept order on us for four thousand dollars by Jesse W. Starr & Co., of Camden, who are now building us a Gas Works. We will, however, agree to pay you what might be due to the Messrs. Starr & Son, not exceeding in amount four thousand dollars, providing this amount shall be due (we will pay you the four thousand), otherwise will pay what might be coming to the Messrs. Starr & Son. Yours, truly,

To F. Dundore & Co.


With the above plaintiffs filed an averment to the effect that the sum of $3681.15 was admitted by defendants to be due Starr & Son for the gas machine.

The affidavit of defence suggested that the instrument and copies filed were not instruments which entitled the plaintiffs to take judgment for want of an affidavit of defence. The affidavit further set forth that Starr & Son have within December 16, 1878. THE COURT. Plain-six months been adjudicated bankrupts, and their tiff's exceptions sustained, and defendant's dis- assignees in bankruptcy have refused to assent missed, and decree made accordingly that the defendant is liable to account to the plaintiff, and that an account be stated by the master in respect of all payments and receipts in reference to the premises in the bill complained of, and of all dealings between the said parties on account of the said premises as well before the 10th of February, 1871, as since.

to a payment of the plaintiffs' claim, but have notified defendants that such payment must be at their own risk; that it would be unsafe for defendants to pay until plaintiffs' claim shall have been adjudicated, and it be ascertained whether the assignment of the claim sued on is not void as a preference. And further, that the papers filed do not entitle plaintiffs to sue in their own


G. Heide Norris, for the rule.

Averments dehors the instrument may be made which must be denied by affidavit. A statement may liquidate a liability fixed by the instrument. sued on.

Bank v. Thayer, 2 W. & S. 447.
Dewey v. Depuy, 2 W. & S. 553.

Imhoff v. Brown, 6 Casey, 506.

Dickerson v. M'Causland, 3 WEEKLY NOTES, 327.

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