Page images
PDF
EPUB

181.

CLEMENTSON v. WILLIAMS

Teb.

14th.

Absent.... WASHINGTON, J.

An acknow

ther an

ac

ERROR to the Circuit Court for the district of ledgment of Columbia, sitting at Alexandria. the original justice of a claim is not The facts of the case are thus stated by the Chief sufficient to Justice, in delivering the opinion of the Court: out of the statute of limi

The Plaintiff instituted a suit against James Williams tations; the acknowledg.

and John Clarke, merchants and partners trading under ment must go the firm of John Clarke & Co. The writ was executed to the fact that on Williams only, who pleaded non assumpsit and the The statute of act of limitations, on which pleas issues were joined. limitations is. The jury found that the Defendant did not assume; and same respect judgment was rendered in his favor. with other statutes, & ought At the trial the Plaintiff gave evidence tending to plained away. prove the partnership, and also to prove dealings of Quere, whe. Clarke & Co. with the Plaintiff. He then offered a witknowledg. ness who proved that he presented, in December premenit by one ceding the trial, to John Clarke a certain account dissolution of against the said John Clarke & Co. in favor of tie the partner. Plaintiff; and that said Clarke s ated that the said accient to take a count was due, and that he supposed it had been paid case out of the by the Defendant, but bad not paid it himself, and did statute of limi- not know of its being ever paid. And the witness to ?

whom the said Clarke made the said acknowledgment produces in Court the identical account so presented to said Clarke and acknowledged by him as aforesaid, which account is in the words and figures following, to wit: 6. an account, &c. And the Plaintiff's counsel offered the contents of said account and the acknowledgment of said Clarke in evidence under the issue joined upon the plea of the statute of limitations, but the Court decided that the said evidence so offered by the Plain iff of the contents of the said account and of the acknowledgment of the same by the said Clarke was not admissible evidence in this cause, and refused to admit the same.” To this opinion the plaintiff excepted, and from the judgment of the Circuit Court he has appealed to this Court.

TAYLOR, for the Plaintiff' in error.

CLE

MENTSON The only question is, whether the acknowledgment of one partner, after the dissolution of the partnership, WILLIAMS takes the case out of the statute of limitations.

We contend that it does, and rely on the following cases: Doug. 651,Whitcomb v. Whiting. 2 H. Bl. 340, Jackson v. Fairbanks, and 2 Johnson, 667, Smith v.

F. S. KEY, contra.

Although the opinion of the Court may be supported upon other grounds, yet it may also be supported upon the point raised, viz. : that the acknowledgment of one partner, after dissolution of the copartnership, cannot be received to take the case out of the statute. It can only be evidence of a new promise, and one partner cannot, after dissolution, bind the other. No acknowledgment of the debt by one partner, after dissolution, can be given in evidence on the general issue to fix the debt upon the other partner. The cases in Douglass and H. Blackstone are different. The joint concern was not dissolved. The authority in Johnson was only a dictum ; the case was decided upon other evidence.

Such evidence would be extremely dangerous. No man could be safe, if, after dissolution of the partner. ship, his partner could continue to bind him forever. At all events it is necessary that the Plaintiff should first prove the original debt by other evidence.

JONES, in reply.

If the opposite doctrine be correct, then, even if each of the partners should acknowledge the debt, the evidence would not support a joint action.

4

The acknowledgment is not considered as a new promise, but simply as rebutting the presumption of payment arising from the length of time, and thereby taking the case out of the reason of the statute.

Feb. 19th....MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: VOL. VIII.

10

CLE

It is contended by the Plaintiff in error that, after the MENTSON dissolution of the partnership, the acknowledgment of

one partner is evidence to revive the original cause of WILLIAMS action against both, and that the acknowledgment made

in this case by Clarke is suflicient for that purpose.

It has been frequently decided that an acknowledgment of a debt barred by the statute of limitations, takes the case out of that statute, and revives the original cause of action. So far as decisions have gone on this point, principles may be considered as settled, and the Court will not lightly unsettle them. But they have gone full as far as they ought to be carried, and this Court is not inclined to extend them. The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away.

In this case there is no promise, conditional or unconditional; but a simple acknowledgment. This acknowledgment goes to the original justice of the account; but this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not then sufficient to take the case out of the act, that the claim should be proved or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due.

In the case at bar, the acknowledgment of John Clarke is that he had not discharged the account presented to him, but he does not say that it was not discharged. His partner may have paid it without the knowledge of Clark, and, consequently, the declaration of Clarke that he had not himself paid it, and that he did not know whether his partner had paid it or not, is no proof that the debt remains due, and therefore is not such an acknowledgement as will take the case out of the statute of limitations.

There is no error, and the judgment is aflirmed with costs.

[blocks in formation]

ERROR to the Circuit Court for the district of A policy on Maryland.

goods to be safely landed

at Leghorn, is The facts of the case, as stated by MARSHALL, Ch. J. discharged by in delivering the opinion of the Court, were as follows : at the Laza

retto; that beThis case arises on a policy of insurance bearing the trade.

ing the usage of date the 19th of June, 1807, for $ 20,000 on the cargo Quere, wheof the ship Spartan, “at and from Baltimore to Leg

ther ransom horn,” the risk to commence on the loading, and to ered where continue « until the said goods shall be safely landed there is a war. at Leghorn aforesaid."

ranty against particular ave

can be recov

rage?

The policy contained, in the printed part, the usual stipulation that the assured, in case of loss, shall labor, &c. for, the preseryation and recovery of the goods, to the expense of which the assurers would contribute according to the rate of the sum insured; in the policy is inserted, in writing, the words 6 warranted free from particular average."

The vessel sailed from Baltimore in June, 1807, and on the 15th of August arrived in the port of Leghorn.

According to the laws and usages of the place, ships arriving at that port, and their cargoes were, obliged to perform a quarantine of thirty days before admission of the cargo, or of any person on board, into the city; the ships performing it in the port, the cargoes in a certain Lazaretto erected for that purpose on the shore of the port about half a mile from the city. Some specified articles were excepted from this rule, but the cargo of the Spartan did not come within the exception. On the arrival in port of a vessel liable to quarantine,

V.

GRACIE the officers of government took possession of the cargo,

and removed it in public lighters to the Lazaretto. MARINE Freight was earned upon the depositing of the cargo INS. co. in te Lazaretto, but payment of it. though often made

before, could not be enforced until after the expiration of the quarantine, and until payment, the lien for the freight continued on the goods. The duties also accrued in the Lazaretto), and until they were paid, the goods could not be removed thence into the city.

The gods remained in the custody of the oficers of government until the expiration of the quarantine, during the continuance of which, neither the master of the ship. nor the consignees had any power to interfere with, or even see, them, but under a permit from the local authorities ; such permits were commonly allowed the consignees, who might take samples, and sell by those samples, while the goods were performing quarantine.

1

After quarantine was performed, and an order from the master obtained, the goods were received at the Lazaretto by the owner or consignee, and trans, ported at his risk and expense into the city. This transportation was most usually made by water; but there was a road along which light goods might be, and freqnently were, carried. Even when goods were sold during the quarantine, they were removed at the risk and charge of the vendors.

In conformity with these regulations, the cargo of the Spartan was placed in the Lazaretto. While it remained there, performing quarantine, a body of French troops took possession of the city, seized the Lazaretto, sequestered the goods there deposited, and refused to give them up until a ransom, amounting to 53 per cent. on their estimated value, should be paid for them. This l'ansom the owners or consignees were compelled to pay in order to obtain restitution of their goods. This action is brought to recover it from the underwriters.

Judgment was rendered in the Circuit Court for the Defendants, which judgment is now brought before this Court by a writ of error.

« EelmineJätka »