Dean v. Hewit

5 Wend. 257

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The holder of negotiable paper can maintain an action on it in his own name without showing title to it. The court will not inquire into his right to the paper, or to maintain a suit on it, unless circumstances appear shewing his possession to be mala fide. The facts in this case do not warrant such a suggestion. The plaintiff has not only the possession, but an interest, if not the entire property in the notes. There cannot therefore be any well founded objection to sustaining the suit in his name.

The new promise relied on to avoid the operation of the statute was conditional. When called on in 1824 for payment, the defendant said it was an honest debt, and he would pay it when he got able. The testimony as to his ability is, that he was reputed at the time of the trial, to be a man of handsome property, and amply able to pay the notes. On a motion for a nonsuit, on the ground that the ability of the defendant was not proved, the circuit judge declared that fact was sufficiently made out, and charged the jury to find a verdict for the plaintiff. It is to be observed, that the testimony was not withdrawn from the jury, but was in fact submitted to them, although accompanied with a positive expression of opinion that it was sufficient to establish the condition which rendered the new promise effective. The judge viewed the testimony correctly; it well warranted the verdict. We cannot, therefore, interfere with the finding of the jury on that ground. If the sufficiency of the evidence to establish the ability of the defendant to pay could be questioned—if the testimony on this point had been contradictory, the party might have had reason to complain that the judge had thrown the weight of his decided opinion into the scale against him.

The new promise was made whilst the notes were the property of the payee; and the principal question in this cause is as to the effect of that promise. A distinction has long prevailed, and has been often recognized in this court, between matters of defence affecting the cause of action and that which reaches the remedy only. Infancy and a discharge under an insolvent law have been considered as affecting the cause of the action, while the statute of limitations has been regarded as touching the remedy only. It would not be profitable to inquire, at this time, into the reasons of this distinction, or the want of reasons for it : for us, it is sufficient to know that it has fór a long time prevailed here, and is an established principle of law. We are not therefore at liberty to overlook it. The statute of limitations proceeds upon the presumption of payment. A recognition of the existence of the debt, after the statute has attached, revives the remedy which was lost; but the cause of action is the same as it was before the remedy was barred. This court has always considered the acknowledgment or new promise as a continuation of the old promise; hence, the recognition of a partnership debt to which the statute has attached, by one of the partners, after the dissolution of the partnership, revives the demand against all the partners. 6 Johns. R. 267. 15 id. 3. Such would not be the effect of a recognition if the demand was ever in fact discharged; for no position is better sustained by authority than that after the dissolution of a partnership, no individual of which it was composed can do any act to create a demand against the firm. The acknowledgment rebuts the presumption of payment; and when made before the statute attaches, has the same effect as if made afterwards. It keeps alive, if I may so express myself, the remedy. If the acknowledgment is made at the end of five years, the remedy is not lost till the expiration of eleven years after the first accruing of the action. In such a case, there is no moment of time during the eleven years when the remedy does not exist. It cannot be said, then, that the new promise either revives the cause of action or the remedy; it only continues the latter. I am inclined to think that a demand, the remedy for the recovery of which is continued or revived by a new promise or a bare acknowledgment of its present existence, is precisely the same after the remedy has been continued or revived as it was before the statute had or could have attached; and where it is evidenced by a negotiable instrument, the negotiability of that instrument is co-existent with the demand. I am aware that some of the positions here stated conflict with the views of Mr. Justice Story, as expressed in his opinion in the case of Bell v. Morrison and others, 1 Peters, 351; but we cannot yield to those views, and give full effect to them, without unsettling principles that have been so long established as to entitle them to be considered as the law of this state.

Motion for new trial denied.