
    NOVEMBER TERM, 1845.
    William A. Davidson vs. Jonathan Morris.
    To take a case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at that time, or an express promise to pay it, must be proved to have been made within the time prescribed by the statute.
    
      X>., in reply to a demand'of payment of a promissory note, barred by the statute of limitations, stated that “ he recollected the note weli, had thought of it often, and expected to have heard of it before ; that it was a just note, but that he had offsets against it.” Held,, not to be sufficient to take the case out of the statute.
    In error from the circuit court of Tallahatchee county, Hon. Benjamin F. Caruthers, judge.
    This was an action of assumpsit brought to the May term, 1843, of the circuit court of Tallahatchee county, by Jonathan Morris against William A. Davidson, on a promissory note for one hundred and seventy dollars and seven and a half cents, dated the 29th day of April, 1834, and payable twelve months after date.
    The defendant pleaded the statute of limitations and payment. To the former, the plaintiff replied a promise within six years, and on the latter he took issue. The jury found for the plaintiff, and the defendant moved for and obtained a new trial. The second trial also resulted in favor of the plaintiff, and the defendant again moved for a new trial, which motion the court overruled. Whereupon, the defendant filed a bill of exceptions, from which it appears that on the second trial the plaintiff read to the jury the note sued on, and then introduced B. F. Morris as a witness, who testified that he called on the defendant for payment of the note, and told him he, witness, had it in his possession, and that it had been transferred to the plaintiff; that the defendant answered that he recollected the note well, had thought of it often, and expected to have heard of it before; that it was a just note, but that he had offsets against it, and showed witness his account of set-off, which witness believed was the same filed with the plea of payment. Defendant did not promise to pay the note. This being all the evidence, the defendant’s counsel then asked the court to instruct the jury, “ that if the defendant acknowledged that the note was originally just, but said anything to show that he did not consider he then owed it, the jury must find for the defendant, as such acknowledgment does not take the case out of the statute,” which the court refused to give, and the defendant’s counsel excepted. The bill of exceptions further shows, that the jury found for the plaintiff, “the amount of the note with interest,” without assessing the specific amount of the damages ; and that the clerk of the court calculated the interest, and entered the judgment for the whole amount of the note including the interest.
    The defendant brought the case to this court by a writ of error.
    
      A. H. Davidson, for plaintiff in error.
    Three errors are assigned, to wit:
    1st. That the court erred in refusing tjie instruction asked by defendant’s counsel; 2d, that the .verdict rendered was contrary to law and evidence; 3d, that the court erred in permitting the verdict to be amended and moulded into form by the clerk, as the same as rendered by the. jury was substantially defective.
    In support of the first and second positions, we lay down the law to be, that in order to revive there must be an admission of a subsisting indebtedness, unaccompanied by anything which shows an intention of the party to avail himself of the statute, or which is sufficient to rebut the implication of a promise to pay. See 2 Paige, 45 ; 6 Johns. Ch. 289 ; 4 Porter, 226; 7 Ibid. 537; 8 Cranch, 72 ; 11 Wheat. 309 ; 15 J. R. 3; 3 Wash. C. C. R. 404; 2 Starkie Ev. 892, 3; Law Lib, No. 272; 37 Blansh. on Stat. Lim. 140; Wilkinson on Lim. of actions, 70; 2 Pickering, 368, and authorities there cited.
    Now in the conversation detailed by the witness, it is clear that the defendant, ^acknowledging the justness of the note, had reference exclusively tos'the time of its execution, for he said: “I recollect the notexvery well, and expected to have beard from it before, that it was (not is) a just note.” He explains why the note was just, because he recollected it; had not forgotten"giving it; had thought of it often; knew, it to be his signature ; and therefore was well satisfied that at its execution it was a just note. It is clear that this was the meaning of the defendant below, for so far from admitting a. satisfactory liability, he repels the presumption of a present indebtedness by informing the witness that he had offsets against the note, and besides the witness says expressly, that the defendant did not promise to pay the note, and no one will deny that the plaintiff below must recover, if at all, upon the promise of the defendant, either express or implied, within six years, to pay the note. Their own witness says no such promise was made, and his evidence ought, at least to establish the fact that no express promise was made, and to furnish an opinion on his part that defendant did not intend to furnish grounds for the implication of such' promise ; which opinion of their witness, with the declaration of the defendant that he had offsets against the note, and the exhibition which he made of his claims against the payee of the note, it is contended, are amply sufficient to rebut the implication of a promise to pay. 8 Cranch, 74; 2 Pickering, 368, and authorities there cited.
    3d. It is insisted that the verdict is defective in this, that the jury did not assess any damages, and for uncertainty, inasmuch as it prescribes no rate of interest, nor the time from which and to which interest shall be computed.
    It is contended that at common law, if the jury who try an issue in a personal action, in their verdict fail to assess the damages, or if the verdict be ambiguous, insufficient, repugnant, imperfect, or uncertain, no judgment can be passed upon it. 2 Tidd’s Pr. 921; 6 Jac. & W. 332; 1 Saunders R. 154, 155; 1 Roll. Abr. 693, 695; 7 Bac. Abr. 37.
    And, indeed, almost any error, either of form or substance in the writ, declaration or subsequent pleadings. The verdict or judgment, was, before the passage of the various statutes of jeo-fails, then, sufficient in England, to arrest and vitiate a judgment. This mischief was attempted to be remedied by various statutory enactments, none of which, however, it is believed, has gone so far as to dispense with certainty as a requisite, in the verdict of a jury, nor to change the common law rule, making, it the duty of a jury, in such cases as the one under consideration, to assess the damages. See 18 Eliz.; 21 Jac. I.; 16 & 17 Car. II.; and 5 Geo. I. Now by an examination of these statutes it will be seen that the most they attempt is to declare that no judgment after verdict shall be stayed or reversed for any fault or defect in any of the proceedings prior to verdict. A verdict might cure almost any defect that had preceded it, but they made no provision for the amendment of substantive, or even formal defects in the verdict itself. They also provide for the amendment of mistakes or defects in judgments rendered without the intervention of a jury; but the authority is nowhere given to amend the verdict. And for the simple reason that it is the duty of the court to pronounce judgment and have it properly entered of record ; and if in the discharge of this duty,, an error be committed, it seems reasonable that the court which committed the error should have power to amend it.
    So if there be mistake or error in the pleadings before verdict and the opposite party choose to go to trial without taking advantage of it, the statute says that in such case, judgment after verdict shall not be stayed or reversed for such cause, as it considers that the party has thereby waived the advantage. But verdicts are to be rendered by jury only; it is their exclusive province; and if amended by the court without the consent of the jury, they certainly should not be called the verdicts of juries but of the courts.
    Our statute of jeofails, it is conceived, is nothing more nor less than an embodiment of the provisions of the various English statutes upon the same subject; see Rev. Code, 124, sec. 91 and 96 ; and contains no provision which changes the common law rule in this case.
    Now it is conceded, (and that is as far as any of the courts have gone,) that if the objection wereonly to the form, it might be amended by the court and still be the verdict of the jury, but it is insisted that the court has no power to give form and substance both, and that it certainly transcended its power in this case. For if the court, in a case like the present, may assess damages and prescribe the rate of interest and the timé it shall ruri, it is difficult to conceive of any good reason why thé jury should not be dispensed with altogether, as it would always be a matter of discretion with the court, whether the verdict, as rendered by the jury, should stand, or one of its own be substituted by way of amendment, and whenever the amendment is in matter of substance, it is no longer tlie verdict of the jury, but of the court that altered it.
    
      A. C. Baine, for defendant in error.
    1. The matter of contest, when reached, is simple. This bill of exceptions, however, shows that it was not taken at the trial; though all the errors complained of wére made objectións at the trial; and, though overruled, riot reserved. “ The bill of exceptions must show affirmatively that the exception was taken pending the trial, and if it does not so appear, the error will be fatal. Patterson v. Phillips, 1 How. 'R. 572. This bill of ex-céptions shows," ¿ffirmatively, that the exceptions Were not taken during the trial, nor was the matter of objection reserve’d. This is a necessary and safe rule, and ought to be adhered to. Much of the spirit, idea and identity "of testimony is lost after the'lapse of two or three days’ labor in a circuit coiirt, by every body except the party rvho broods over it, with intention to file a bill of exceptions, and'in his moodiness hacks off all the'edge of all1 the testimony that cut him at the trial.
    2. But I think there can be no clearer casé óf taking a matter out of the statute. The evidence is, that defendant admitted it “ a just note, but that he had offsets against it.” Now suppose he had stopped at the admission of its justness. Certainly no one would say that'this was not sufficient to take the case out of the statute, especially after the finding of a jury.
    It is true that the English courts, in an early day, held there must be an express promise to take a case out of the statute. 2 Show. 126; 2 Vent. 152.
    It then was ruled that an acknowledgment was sufficient for a jury to infer a promise. Com. R. 54; Carth. 470; 1 Ld. Raymond, 389; Bull. N. P. 148.
    
      Then came the rule, that the slightest acknowledgment would take a case out of the statute. Quantock v. England, 5 Burr. 2630. In the case of Trueman v. Fenton, 2 Cowp. 548, Lord Mansfield said, “ The slightest acknowledgment has been held sufficient; as saying, 1 prove your debt and I will pay you;’ ‘I am ready to account, but nothing is due to you.’ And much slighter acknowledgments than these will take a case out of the statute.”
    3. The defendant, however, doubtless, went on the rule relative to admissions, that all the party says must be taken together. He, however, did not distinguish well as to the nature of the rule. It is true that all the admissions must be “ admitted” to the jury as evidence, but it is not true that the jury must believe, and find accordingly. For it is expressly laid down, as the law, that what a man has said “ in his own favor, may weigh very little with the jury, while his admission against himself may be conclusive. Yet it is but reasonable that both be taken together.” 1 Phil. Ev. 110. Now this being so, how many circumstances, most prominent, were there in this case to incline them not to believe what the defendant said for himself? First, the whole of the account claimed as a set-off (except $13 88, and 75 cts.) was due 1st January, 1834, and the note is dated 29th April, 1834. Secondly, the note is due twelve months after date. Thirdly, one item in the account of set-off is $250 for services as clerk, in 1833 and 1834; now is it probable he would, under any circumstances, give a note when such a great overbalance was due him, and such a large item for personal services to the concern'? Again, no claim is ever pretended for any balance after paying the note. Is it morally possible, that with a just account of $474 99, against a note of $175 07|, he would have waited six years in anxious expectation to “ hear” of the note, to use his own language, and when he did hear of it, by a demand of payment, not to intimate a desire to have the balance of the account over the note ? It is absurd. No jury could have believed a tale so grossly put up as that! Again, he never offered any testimony in support of his account, much of which was extremely susceptible of proof, if true, especially the item for services as a clerk. Nor did he ever propose a discovery from the plaintiff’s assignor for those items, if any, which could only be proved by a discovery. In the case of Bryan v. Horseman, 4 East, 559, the defendant said when arrested, “I do not consider myself as owing Mr. Bryan a farthing; I have had the wheat, I acknowledge, and I have paid some part of it, and £26 remains due,” was held to take the whole case out of the statute. So here the note was expressly admitted to be just, and a set-off claimed. The jury found the one part true and the other not true. And as I have before shown, for reasons that must be satisfactory to every mind. The case is then not only fully within the rules as to an acknowledgment taking the case out of the statute, as no express promise is necessary; but it is also fully and entirely within the rule laid down in Phillips as to admissions. Now if the court had admitted one part to the jury and excluded the other, that would have been error. But when both were admitted, there is none.
    4. I see a point made in the bill of exceptions, which contradicts the judgment of the court. This, I suppose, will not be tolerated. That is the exceptions state that the jury found “the amount of the note and interest,” but did not calculate the interest and add it to the amount of the note. That certainly was a substantial finding of the whole issue. And it was surely as competent for the court, after this fact found by a jury, to enter up judgment, without a writ of inquiry, as it is for it to continue its daily practice of entering up judgments on notes where no plea has been put in; and even entering into long calculations, where there have been various payments. The amount of that note and interest was the matter in controversy. That was found for the plaintiff; and this court will not send it back for a writ of inquiry, for another jury to merely calculate the interest and add to the principal of the note, after two successive verdicts for the plaintiff.
    This is mere informality. The substantial issue the jury did find, and therefore it is not an error for which the judgment will be reversed. See sec. 91, Cir. Court Law Rev. Code, 124. And if it were error in fact, by some miscalculation, it seems to me so mere a clerical error as this court will by its clerk amend. See Rev. Code, 125, sec. 96; 2 Tidd’s Practice, 928, 929; 8 Price, 256.
    
      Waul, on the same side.
    The acknowledgment was sufficient to take the case out of the statute. The verdict was merely informal, and could be corrected by the clerk under the direction of the court.
   Mr. Justice Thachek.

delivered the opinion of the court.

Writ of error to Tallahatchee county circuit court.

The question is presented whether the contract on the note is within the statute of limitations. The evidence insisted upon as proof of acknowledgment, is, that the plaintiff in error, in reply to a demand of payment, stated, that “he recollected the note well, had thought of it often, and expected to have heard of it before; that it was a just note, but that he had offsets against it.”

Statutes of limitation are designed as acts of quiet and repose, and as a means of the discouragement of lawsuits, which is of great interest to every good government. It is the part of public policy to discountenance those who permit the remedies for their rights to be postponed by their own unreasonable forbearance, and hence has arisen that motto in jurisprudence, that the law is created for the watchful and not for the negligent. The statute, however, although it bars the remedy, does not extinguish the debt, and it may therefore be revived by a subsequent promise on the part of the defendant. The question what shall be considered as amounting to a promise, or a sufficient acknowledgment of a debt, has been the cause of great difference of opinion in the courts. After much examination of the adjudged cases, and reflection upon the consequences which have followed a too liberal view of this question, the best method to ensure the advantages designed by the statute seems to be, to hold that in order to take a case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at that time, or an express promise to pay it, must be proved to have been made within the time prescribed by the statute.

In the case before us, the statement of the plaintiff in error that the note was just, taken by itself, might be viewed as amounting to an acknowledgment of an existing debt, but when it is remembered that, in this connexion, he also remarked that he had offsets against it, it is impossible to give any other meaning to that-statement, than that of an acknowledgment of the debts’ having been originally just. This is insufficient to take a case out of the statute. Clementson v. Williams, 8 Cranch, 72.

Judgment reversed, and new trial awarded.  