Adkins v. Columbia Life Insurance Company.

voluntary and the self-destruction intentional, though the assured failed to appreciate its moral character; but it is difficult to conceive how the act could have been voluntary and intentional, where the faculties of the deceased were so impaired that he was not able to understand the general nature, consequences and effect of the act he was about to commit,' or when he was impelled thereto by an insane impulse which he had not the power to resist." In order to make the extract from the opinion of Justice HUNT consistent with itself, the words "general nature, consequences and effect of the act," must be taken to be an amplification of the words "moral character," immediately preceding, and to refer to the moral nature, moral consequences and effect of the act; and the last alternative must be regarded as an independent statement of the manner of the death of the assured, because it is impossible that the death could be caused by the voluntary act of the assured when he was "impelled thereto by an insane impulse which he had not the power to resist." Besides, this is evidently the construction put upon this passage by the Supreme Court of the United States in the subsequent case of Bigelow v. Berkshire Life Ins. Co. The language of the agreed statement denoting the state of mind of the assured having been adopted from the opinion in Terry v. Ins. Co., must be regarded as having been used by the parties in the sense in which it was employed in that opinion, and as it appears from such statement so construed that the mind of the assured was only so far impaired that he did not understand the moral quality and consequences of his act, it follows from the views we have expressed that the defendant is not liable for the full amount of the policy. The judgment will therefore be reversed and the cause remanded, with directions to the Circuit Court to enter a judgment against the defendant for the net value of the policy at the time of the death of 'he insured.

All concur.

Reversed and remanded.

A demand is not taken out of the operation of the statute of limitations by a written acknowledgment found among the debtor's papers after his death. (See note, p. 417.)

A

CTION on a note. The opinion states the facts. ant had judgment below.

The defend

Gill & South, for plaintiff in error, cited 2 Wag. Stat., §§ 28, 920; Ang. on Lim., §§ 270, 271; Whitney v. Bigelow, 4 Pick. 110; Soulden v. Van Rensselaer, 9 Wend. 293; Bryar v. Wilcocks, 3 Cow. 159; 1 Greenl. on Ev., § 150; Carter v. Carter, 44 Mo. 195; Public Admr. v. Watts, 1 Pai. 347; 1 Perry on Trusts (2d ed.), § 91; Carr v. Hurlbut, 41 Mo. 264; Blue Hill Academy v. Ellis, 32 Me. 268; Baxter v. Penniman, 8 Mass. 134; Watkins v. Stevens, 4 Barb. 171; Hill on Trustees, 61; Pearce v. Dansforth, 13 Mo. 360; Renfro v. Harrison, 10 id. 411; 2 Greenl. Ev., §§ 440, 441.

D. C. Allen, for defendant in error.

NORTON, J. The defendant in this case interposed the plea of the statute of limitations in bar of plaintiff's right of action on a note executed by his intestate to plaintiff, dated January 10, 1864, for $134, due from its date. To take the case from under the ope ration of the statute plaintiff offered in evidence a certain writing contained in the private account book of defendant's intestate, signed by said intestate, purporting to be a will written in pencil. Said writing was not attested, and was found among the papers of the intestate after his death, and contained the following words: "That out of my estate she (alluding to his wife) shall pay all my just debts, including a debt due my mother of about $400."

The only question presented in the case is whether the said writing was such an acknowledgment as would prevent the operation of the limitation law. The court below held that it was not sufficient, and gave effect to the defendant's plea of the statute, and this action of the court is assigned for error. There is a conflict

Allen v. Collins.

of the authorities as to whether an acknowledgment or promise in writing, signed by the party to be bound, if made to a stranger would be sufficient to take a case from under the operation of the statute of limitations, but there is no conflict as to the necessity for such promise or acknowledgment being made to some person, either to the creditor or his representative, or to a stranger. promise or acknowledgment implies that it is made to somebody, and in every promise there must necessarily be a promisor and promisee. The will in question was never attested, and was therefore no will. A mere writing acknowledging a debt, which is retained by the person making it, and which is never delivered either to the creditor or any one else, cannot have the effect of preventing the operation of the statute. In the case of Merriam v. Leonard, 6 Cush. 150, where the acknowledgment of the debt was contained in a mortgage duly executed and acknowledged, which was never delivered to the mortgagee, but was found after the mortgagor's death among his papers, Chief Justice SHAW held that it did not amount to an acknowledgment of the debt or of a willingness or intention to pay from which a promise could be implied. The deed was never delivered, and of course was not an instrument by which the signer was bound.

All concur except NAPTON, J.

Judgment affirmed.

NOTE BY THE REPORTER.-In Duiguid v. Schoolfield, 32 Gratt. 803, it was held that a deposition of the maker of a note given and signed by him, in a case in which the obligeo was not a party, for the purpose of obtaining a credit for it as to be paid by him, and for which he was allowed such a credit in that case, is such an acknowledgment of the debt by him as will defeat the plea of the statute of limitations in an action on the note by the obligee against him. The court said:

"There is no doubt the plaintiff, to maintain the issue on his part, was bound to provo the promise alleged in his replication. He was not required to prove an express promise. It was sufficient for him, under the statute, to establish an acknowledgment in writing, from which a promise of payment might be implied. Such acknowledgment, to be effectual, must not consist of equivocal, vague and indeterminate expressions; but ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable for and willing to pay. STORY, J., in Bell v. Morrison, 1 Pet. 351, 362. The same rule is laid down, with some variety of expression, by other judges. A distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay. TINDALL, C. J., in Linsell v. Bonsor, 2 Bing. N. C. 241 (29 Eng. C. L. 319). If an acknowledgment is relied on, says Judge PARKER, it ought to be a direct and unqualified admission of a present subsisting debt, from which a promise to pay would naturally and irresistibly be implied. Sutton v. Burruss, 9 Leigh, 381. If there be an unequivocal admission that the debt is still due and unpaid, unaccompanied by any expression, declaration or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise is then present, and the. VOL. XXXV — 53

Allen v. Collins.

party is bound by it. JOHNSON, J., in Young v. Monpoey, 2 Bailey, 278. It is needless to multiply authorities for the proposition stated, but the following may be consulted: Banas v. Hall, 2 Pick. 368; 13 Am. Dec. 437; Baily v. Crare, 21 id. 323; Russell v. Copp, 5 N. H. 154; Head, Ex'x v. Warner's Adm'rs, 5 J. J. Marsh. 255; Peebles v. Mason, 2 Dev. 367; Aulett's Ex'r v. Robinson, 9 Leigh, 45; Sutton v. Burruss, id. 881; Butcher v. Hirton, 4 id. 559; opinion of MONCURE, J., in Bell v. Crawford, 8 Gratt. 110.

"The next and only remaining ground of error alleged is, that the plaintiff not being a party to the suit in which the deposition was taken, the statements therein cannot be construed as admissions or acknowledgments made to him, and that no promise of payment can be implied from an acknowledgment of a debt so as to take it out of the operation of the act of limitations, unless such acknowledgment be made to the creditor to whom the debt is owing, or to some person representing him by authority.

"In Joynes on Limitations, 120, the learned author says of the question here presented, that 'since it has been established that a new promise, express or implied, is necessary to defeat a plea of the act of limitations, and that such new promise operates as a new cause of action, it has been frequently held, as it was before, that the promise need not be made directly to the creditor himself, or to any person representing him, or entitled to demand payment of the de! t, but may be made to a third person, or inferred from an acknowledgment inter alias ;' and he cites many cases in which the principle is applied.

He refers also to several elementary works, among them 2 Story's Eq. Juris. 909 (ed. 1843), in which the contrary doctrine is laid down and the authorities for it cited, which, in his opinion, do not sustain the text. But he concludes what he has to say on the subject with the remark (p. 123), that the doctrine in question certainly furnishes a valuable security against the inference which has too often been drawn from careless conversations with third persons, and tends strongly to advance the policy of the legislature.'

"Since the publication in 1844 of this excellent treatise on limitations, there have been numerous decisions, both in England and the United States, adverse to the views expressed by the distinguished author, and it is said, in a recent work of merit, that according to the very decided weight of the latest decisions in this country, a promise to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have had any authority from the creditor to call upon the debtor in relation to the debt, will not avoid the bar of the statute. In support of this proposition the following cases are cited, which we have examined, and they seem to be in point: Ringo v. Brooks, 26 Ark. 540; Gillingham v. Gillingham, 17 Penn. St. 302; Moorehead v. Wriston, 73 N. C. 398; Parker v. Sherford, 76 id. 219; Wachler v. Albee, 80 Ill. 47; McGrew v. Forsyth. id. 596; Kisler v. Sanders, 40 Ind. 78; Sibert v. Wilder, 16 Kans. 176; s. c., 22 Am. Rep. 280; Fletcher v. Updike, 3 Hun, 350; Cape Girardeau County, v. Harbison, 58 Mo. 90; Trousdale v. Anderson, 9 Bush. 276. See, also, the cases referred to in notes of the American editors to Whitcomb v. Whiting, 1 Smith's Lead. Cas., part 2, marg. p. 726, where it is said to be well settled, both on authority and principle, that the debt will not be revived by an entry or memorandum, not forming part of a mutual account, on the books or papers of the debtor, or by a mere declaration or admission to a third person, meant only for his ear, and not intended to be communicated to the creditor.

"The diversity in the earlier and later decisions is attributable, for the most part, to the different and somewhat antagonistic theories entertained at different periods concerning the design and policy of the statute. Under the leadership of Lord MANSFIELD, it was for a long time considered and held that under the statute lapse of time raises a mere presumption of satisfaction, which, like other presumptions, might be repelled, and hence that a new promise of the debtor, whether express or implied, was only evidence of the pre-existing debt and gave no new cause of action. Subsequently, this theory was overturned and succeeded by a course of decision, initiated and fostered by Chief Justice BEST, which regarded and construed the statute as one of repose, and the new promise as a new contract and actionable as such. This view is now generally accepted. Sibert v. Wilder, 16 Kans. 176; s. c., 22 Am. Rep. 280, and cases cited. It would seem to follow logically that the promise, to be sufficient to take a case out of the statute, should be made directly or mediately to the creditor or at least for his benefit, so that he may be able to maintain an action upon it. It is said that the declaration or admission to a third person is deemed insufficient, not so much because the acknowledgment is made to a stranger as because

Allen v. Collins.

there is no sufficient evidence of an intention to contract. 1 Smith's Lead. Cas., part 2, marg. p. 976.

"We do not consider the judgment under review as conflicting with the recent decisions which have been cited. The deposition of the plaintiff in error was given, probably, at his own instance, for the very purpose of establishing, among other claims, the validity and binding force upon him of the debt, the recovery of which is now sought to be defeated by reliance on the act of limitations, and it was because of his sworn statements that he received credit for the debt on his bonds. He must therefore be understood to have in. tended that his acknowledgment of the debt, under the attending circumstances, should be accepted as such and confided in and acted upon by the creditor to whom the debt was due. He cannot be allowed to take the benefit of the acknowledgment and then repudiate its obligation."

The cases cited in the note to Whitney v Whitcomb, Smith's Lead. Cas., part 2, marg. p. 726, are Edwards v. Culley, 4 H. & N. 378; Bloodgood v. Bruen, 4 Seld. 362; Badger v. Arch, 10 Exch. 341; Grenfell v. Girdlestone, 2 Y. & C. 676; Kyle v. Wells, 5 Harris, 286; Gillingham v. Gillingham, id. 302; Pearson v. Darrington, 32 Ala. 227; Reeves v. Corell, 19 II. 189. The editor says this doctrine “is not so much because the promise is made to a stranger, as because there is no sufficient evidence of an intention to promise." "The view thus taken is better founded than that which prevailed in some of the earlier cases, where any acknowledgment from which the continued existence of the debt could be inferred was deemed sufficient, whether made to a third person or to the plaintiff in the action. Newkirk v. Harrington, 5 Harr. 38; McReav. Kennon, 1 Ala. (N. S.) 295; Soulden v. Van Rensselaer, 9 Wend. 297; McRea v. Purmort, 16 id. 477; Titus v. Ash, 4 Wooster, 319; Phillips v. Peters, 21 Barb. 351; Watkins v. Stevens, 4 id. 168; Carshore v. Huyk, 6 id. 585; Whitney v. Bigelow, 4 Pick. 110; 13 Am. Rep. 437; Minkler v. Minkler, 16 Vt. 193; Oliver v. Gray, 1 Harr.& G. 204; Bird v. Adams, 7 Ga. 505; St. John v. Garrow, 4 Port. 225; Mountstephen v. Brook, 3 B. & Ald. 141; Clark v. Hougham, 2 B. & C. 149." To this effect is Katz v. Moessinger, 7 Bradw. 536.

Mc Rea v. Kennon and Bird v. Adams, supra, held that a promise by maker to former holder of a note inured to a later holder. Soulden v. Van Rennselaer, supra, that a promise to a present holder inures to a later holder. The other cases cited by Smith were of promises to entire strangers.

In Edwards v. Culley, 4 H. & N. 378, POLLOCK, C. B., said, obiter: "If a debtor had written in a book a private memorandum of his debt, and the creditor got hold of the book and produced it in court, that would not be an acknowledgment to take the case out of the statute, because no promise to pay could be inferred from it."

In Bloodgood v. Bruen, 4 Seld. 362, it was held, reversing the decision in 4 Sandf. 362, that no promise could be implied from an acknowledgment in an answer to a bill in chancery filed by a third person, or drawn out from the debtor while testifying as a witness; the promise must be made to the creditor or his agent.

But an acknowledgment or promise to a third will inure to the original promisee, if made upon a consideration or intended to be communicated to him. So, in Collett v. Frazier, 3 Jones Eq. 80, where a dying man said to a bystander that he owed the plaintiff so much for a slave, which he desired to have paid, and in Jordan's Adm'r v. Hubbard, 26 Ala. (N.S.) 433, where decedent told A. that he could not live long, and did not expect to see B. (his administrator), but wanted A. to bear witness that he wished B. to pay his debt to C. And in Evans v. Cary, 29 id. 99, where A. and B. met at the house of a common relative, and the latter refusing to speak to him, A. complained to C., who said it was because B. had suftered as indorser for him, whereupon A. said if B. had paid any thing for him he was able and willing to pay it. These cases are cited by Smith, but the two latter lose force from fhe fact that the court said that the acknowledgment was valid if made to a third person, without dwelling on the intention to have it communicated.

In Ross v. Ross, 13 N. Y. Sup. Ct. 80, an executor put in his inventory an outlawed debt made by him to the testator. Held, a sufficient acknowledgment in writing to take it out of the statute. So, where a testator, in preparing his will, admitted the justice and validity of a debt, and when he executed the will, prepared a schedule of the indebtedness, and acknowledged that he was willing to pay it. Rogers v. Southern, 4 Baxt. 67. So, of an inventory and affidavit of a debt made to procure a discharge in insolvency. Bryar v.