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BELL V. MORRISON, 26 U. S. 351 (1828)

U.S. Supreme Court

Bell v. Morrison, 26 U.S. 1 Pet. 351 351 (1828)

Bell v. Morrison

26 U.S. (1 Pet.) 351


The authority given by the Act of Congress of 24 September, 1789, chap. 20, to take depositions of witnesses in the absence of the opposite party is in derogation of the rules of the common law, and has always been construed strictly, and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible.

The certificate of the magistrate taking the deposition is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury if all she necessary facts are there sufficiently disclosed.

It should plainly appear from the certificate of the magistrate that all the requisites of the statute have been fully complied with, and no presumption will be admitted to supply any defects in the taking the deposition.

The statute of limitations in Kentucky is substantially the same with the statute of 21 James II, ch. 16, with the exception that it substitutes the term of five years instead of six. The English decisions have therefore been resorted to in this case upon the construction of the statute of Kentucky, and are entitled to great consideration. They cannot be considered as conclusive upon the construction of a statute passed by a state upon a like subject, for this belongs to the local state tribunals, whose rules of interpretation must be presumed to be founded upon a more just and accurate view of their own jurisprudence.

If the doctrines of the Kentucky courts in the construction of a statute of that state are irreconcilable with the English decisions upon a statute in similar terms, this Court, in conformity with its general practice, will follow the local law and administer the same justice which the state court would administer between the same parties.

The statute of limitations, instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it what it was intended, emphatically, to be -- a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten or be incapable of explanation by reason of the death or removal of witnesses.

An exposition of the statute of limitations which is consistent with its true object and import is that expressed by this Court in the case of Wetzell v. Bussard, 11 Wheat. 309, an acknowledgment which will revive the original cause of action, must be unqualified and unconditional -- it must show positively that the debt is due in whole or in port. If it be connected with circumstances which in any manner affect the claim, or if it be conditional, it

"may amount to a new assumpsit, for which the old debt is a sufficient consideration, or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition or a readiness to perform it must be shown."

If the bar of the statute 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, and if any conditions are annexed, they ought to be shown to be performed.

Page 26 U. S. 352

If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a present 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 expression be equivocal, vague, or 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.

The decisions of the courts of Kentucky giving a construction to the statute of limitations of that state are in accordance with the principles which have been sanctioned by this Court. Those decisions evince a strong disposition of the courts of Kentucky to restrict within very close limits any attempt to revive debts by implied promises resulting from acknowledgments or other confessions by parol. It is the duty of this Court in a case arising in Kentucky to follow out the spirit of those decisions so far as the Court is enabled to gather the principles on which they are founded.

In the construction of local statutes, this Court has been in the habit of following the judgments of local tribunals.

The admission of a party of the existence of an unliquidated account on which something is due to the plaintiff, but no specific balance is admitted and no document produced at the time from which it can be ascertained what the parties understood the balance to be would not, by the courts of Kentucky, be held sufficient to take the case out of the statute and let in the plaintiff to prove aliunde any balance, however large it may be. It is indispensable for the party to prove by independent evidence the extent of the balance due to him before there can arise any promise to pay it as a subsisting debt.

The acknowledgment of a debt by one partner after a dissolution of the co-partnership is not sufficient to take the case out of the statute as to the other partners.

A dissolution of partnership puts an end to the authority of one partner to bind the other; it operates as a revocation of all power to create new contracts, and the right of partners as such, can extend no further than to settle the partnership concerns already existing, and distribute the remaining funds, and this right may be restrained by the delegation of this authority to one partner.

After a dissolution of a partnership, no partner can create a cause of action against the other partners except by a new authority communicated to him for that purpose.

When the statute of limitations has once run against a debt, the cause of action against the partnership is gone.

The case was presented for the consideration of this Court upon a bill of exceptions taken by the plaintiff in error.

An action of assumpsit was instituted against Charles Wilkins, Jonathan Taylor, James Morrison, Anthony Butler, and Isaac White in 1823. The defendants, on 1 March, 1810, by articles of agreement under their respective hands and seals entered into a partnership for the purpose of manufacturing and vending salt at Saline, near the Wabash in the

Page 26 U. S. 353

then Illinois Territory under the firm of Jonathan Taylor & Co., and the object of this suit is the recovery of about $20,000 claimed to be due on the sale and delivery of castings to that value or amount. The evidence of the sale and delivery of the articles and of their value was complete, and the questions which were presented to the court by the record were:

1st. Upon the decision of the circuit court against the admission of a deposition which had been intended to be taken in conformity with the provisions of the Act of Congress of 24 September, 1789, ch. 20, and in reference to the taking of which were was in all respects a compliance with the directions of the act, with the exception that the deposition was not certified to have been reduced to writing by the magistrate or by the deponent in his presence, and

2d. On the exclusion of certain testimony and the validity of the plea of the statute of limitations, upon which plea, the decision of the court having been in favor of the defendants, a verdict and judgment was rendered for them.

All the facts considered as proved in the case and also the written and documentary testimony essential to a full understanding of the case are stated at length in the opinion of the Court, delivered by MR. JUSTICE STORY.

Page 26 U. S. 355

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