
    The Farmers Bank v. Clarke.
    November, 1833.
    Debt on Note — Statute of Limitations— Subsequent Conditional Promise. — In debt on a promissory note negotiable at bank, by holders against in-dorsers, the indorser pleads the general issue, with leave to give the statute of limitations in evidence; and, at the trial, the plaintiffs provea conditional promise made by the indorser to pay the debt, within the period of limitation: Hbld, such conditional promise does not suffice to take the case out of the statute, unless performance of the condition be shewn.
    Debt in the circuit court of Henrico, brought by the president, directors and company of the farmers bank of Virginia, indorsees and holders, against Frederick Clarke, the maker, and Miles Bott and Colin Clarke, indorsers, of a *note negotiable and payable at the bank, for 1200 dollars. The action was founded on the statutes of Virginia, giving an action against the maker and indorsers of such notes jointly; 1 Rev. Code, ch. 126, $ 2, p. 485; 2 Id. ch. 196, \ 15, art. 13, p. 90. Frederick Clarke confessed judgment. The writ abated as to Bott, by the return, that he was ‘‘no inhabitant.” The defendant Colin Clarke pleaded nil debet; and the plaintiffs agreed, that he might give in evidence under that plea, any matter which he might give in evidence under a plea of the statute of limitations.
    At the trial the plaintiffs filed a bill of exceptions, stating, that the plaintiffs offered in evidence the note on which the action was founded, which was dated the 12th February 1819, and payable sixty days after date, with two credits indorsed thereon, one for 187 dollars received from W. Clarke trustee, dated the 11th June 1825, and the other for 564 dollars received from J. Brockenbrough and other trustees, dated the 13th March 1826; and proved the making of the note by Frederick Clarke, and the indorsements thereof by Bott and Colin Clarke; and that the note had been discounted at the bank for the accommodation of the maker, and had been protested for non-pajnnent at maturity, and due notice of the protest given to the defendant Colin Clarke. And, then, to take the case out of the statute of limitations, on which that defendant relied, the plaintiffs introduced a witness, who testified, that some years after the protest of the note, the defendant offered a note at the same bank for discount for his own accommodation, which the bank refused to discount; and shortly after this, and within five years next before the commencement of this action, the defendant asked the witness (who was a director of the bank at the time) why his note had been rejected; to which the witness answered, that he had voted for rejecting it, because the defendant was on the protest book of the bank, alluding to the protested note of Frederick Clarke indorsed by Bott and the defendant Colin Clarke, on which this action was brought; and thereupon, the defendant said, *“that the bank was well secured in that case, for it had a deed of trust on Frederick Clarke’s real property, as collateral security, and if the bank would sell, or when it should sell, that property, should it not sell for enough to discharge the debt, he, the defendant, would pay the balance; that the property was sufficient to pay Frederick Clarke’s bank debt, and he would pay the debt for the property.” Whereupon the court, upon the motion of the defendant’s counsel, instructed the jury, that if they should find from the evidence, that the defendant’s supposed admissions were to the effect, that, upon condition the plaintiffs would resort to the collateral security they held for Frederick Clarke’s debt, he would pay any balance that might remain unsatisfied, then such conditional admission was not sufficient to take the case out of the statute of limitations, unless the plaintiffs should prove that they had performed the condition. And then the plaintiffs’ counsel moved the court to instruct the jury, that if an indorser of a note acknowledges that there is a subsisting debt, but says, that before he will pay it, the holders must resort to collateral security given by the maker or any other indorser, to which, in point of law, the holders were not bound to resort before they could recover on the note, this does not prevent the acknowledgment of the debt from taking the case out of the statute of limitations: but the court refused to give this instruction to the jury, and instructed them, that if they should find from the evidence, that the defendant’s acknowledgment was unconditional, such acknowledgment was sufficient to take the case out of the statute; but if they should find that the supposed acknowledgment of the defendant was dependent on any act to be performed by the plaintiffs, such conditional acknowledgment was not sufficient for that purpose, unless the plaintiffs proved performance of the condition. To these opinions of the court the plaintiffs excepted.
    There was a verdict and judgment for the defendant; from which the plaintiffs appealed to this court.
    ^Daniel, for the appellants.
    The attorney general, for the appellee.
    
      
      Debt on Note — Statute of Limitations — Subsequent Acknowledgment. — ‘See foot-note to Butcher v. Hixton, 4 Leigh 519, where the cases citing the principal case are collected.
    
   CASE, J.

I think the instructions given by the circuit court to the jury were correct. It is not consonant with either law or reason, that when a man makes a promise or acknowledgment, you shall take a part of it, and reject the rest; that when he says, “if you will do this or that, I will pay you,” you shall discard the condition, and make his promise unconditional. I know there are many old cases, which consider the statute as founded on the presumption of payment; that whatever repels that presumption, is, in legal effect, a promise to pay the debt; and that, though such acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the condition or refusal void, and the acknowledgment itself as an unconditional answer to the statute. But the more recent, and, I think, the more rational, decisions take a different view of the case. They consider this a statute of repose, which ought to receive | from the courts a fair and • just support. They consider the acknowledgment a new promise, not a continuance of the old; and that to revive the debt, it must be unqualified and unconditional. This is decided in Clementson v. Williams, 8 Cranch 72. And again in Wetzell v. Bussard, 11 Wheat. 314, chief justice Marshall, delivering the opinion of the court, and speaking of the acknowledgment, says, “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 -y 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 shewn.” In Bell v. Morrison, 1 Peters 351, 362, the court after repeating what it had decided in the cases before cited, says, “We adhere to the doctrine thus stated, and think it the only exposition of the statute which is consistent with its true object and import. t If the bar 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 terms unequivocal and determinate; and if any conditions are annexed, they ought to be shewn to be performed.” In Moore v. Bank of Columbia, 6 Peters 92, the court reassert verbatim, the doctrine of the former cases, and consider it thé settled doctrine of the court. The supreme court of Massachusetts, in Bangs v. Hall, 2 Pick. 368, after reviewing" the principal cases, held, that to take a case out of the statute, there must be an unqualified acknowledgment, not only of the debt as originally due, but that it continues so; and, if there has been a conditional promise, it must be shewn that the condition has been performed. The same doctrine has been held in New York; Sands v. Gelston, 15 Johns. Rep. 511; Roosevelt v. Marks, 6 Johns. Ch. Rep. 266, 290. And in Pennsylvania; Brown v. Campbell, 1 Serg. & Rawle 176; Fries v. Boisselet, 9 Id. 128. If I were to go into the english authorities, the field would be still wider: but I will not. These cases assuredly sustain the correctness of the instructions of the circuit court in this case, and shew that the loose conversation of Clarke with the bank director, was wholly insufficient to take the case .out of the statute.

It is not necessary to examine the more general proposition discussed in the argument, whether in debt on a promissory note, any subsequent acknowledgment can be resorted to, to take the case out of the statute. However, as the case of Butcher v. Hixton, [ante] in which that point was decided, has excited some remark, I shall barely say, that the case was very ably argued; that for myself, I examined it very laboriously;. and that on a reexamination, I continue to think the opinion there given correct, whether we take it upon the pleadings, upon the plain meaning of the statute, upon principle, or upon authority.

CABELL, J.

I am of opinion that a conditional promise to pay a debt, will not take the case out of the statute of *limitations, without proof of the performance of the condition. It is competent to him who makes a promise, to •annex to it what terms or conditions he pleases; and it would be unreasonable to permit him in whose favor it was made, to avail himself of the benefit of it discharged of the condition. The point has been repeatedly adjudged in the supreme court of the U. States. On this ground, I am for affirming the judgment. Whether •a promise, sufficient to take a case out of the statute of limitations, operates as a revival or continuation of the old contract, or as a new, distinct and substantive contract, founded on the old consideration, or whether there is any difference between the action of debt and the action of assump-sit, as relates to this subject, I do not deem it necessary to decide at present; since, in any aspect of this case, the judgment is right.

BROOKE}, J.

I concurred in the opinions of the president and judge Carr in Butcher v. Hixton, solely on the ground, that the acknowledgment of Hart, the principal in the note in that case, could not be considered as a waiver of the statute of limitations by Butcher, the surety. 1 did not think it material to decide any other point made in the argument. Even in an action •of assumpsit, such an acknowledgment by the principal, would not have been considered as a waiver of the statute by the surety. The vacillating decisions of the english judges on this subject are very ¡much to be regretted; and it would be better that the legislature should interpose, and restore the statute to its original object, by an enactment that would exclude every species of acknowledgment or promise, not made in writing. If the acknowledgment stated in the demurrer to evidence in Butcher v. Hixton had been by Hart and Butcher, jointly, it would not have repelled the statute. It was a mere acknowledgment that the debt was justly due: but, as is said by chief justice Marshall in Clementson v. Williams, this would not be enough, as the statute was not enacted to protect persons from claims fictitious in their origin, but from *antient claims, whether -well or ill founded. The acknowledgment in Butcher v. Hixton, being defective in two respects, as a waiver of the statute, it was unnecessary to decide the question, whether it was within the issue in that case. My impression is, that if the acknowledgment had been made by Hart and Butcher both, it would have been within the issue of debt or no debt, which is the issue on the plea of nil debet. The cases on this subject are collected in Blanchard’s treatise on limitations, pp. 128-140.

As to the case now before ns, the case of Wetzell v. Bussard, in the supreme court of the U. States, is conclusive. In that case as in this, the acknowledgment was conditional, and it -was held that the plaintiff ought to prove performance or readiness to perform the condition, else it was unavailing to repel the statute. Here, no such performance of the condition has been shewn. I think the judgment must be affirmed.

TUCKER, P.

Though I think it very clear that the judgment in this case must be affirmed, without relying on the opinions expressed by a part of the court in the case of Butcher v. Hixton, yet I think it proper to remark as to that case, 1st, That it is not conceived to go farther than to establish the necessity of bringing assumpsit, or adding a count on indebitatus assumpsit to the declaration in debt, where reliance is to be placed upon an acknowledgment or promise to avoid the bar of the statute of limitations. — 2ndly, That however technical this may seem, yet, similar technicalities are to be found in innumerable decisions of this court, and are necessary indeed to preserve distinct the line of demarcation between different actions, and to prevent the whole system of pleading from being thrown into chaos: see Cooke v. Sims, 2 Call 39; Young v. Gregorie, 3 Id. 446; Taylor v. Rainbow, 2 Hen. & Munf. 423; Moore v. Dawney, 3 Id. 127; Smith v. Segar, Id. 394; Syme v. Griffin, 4 Id. 277; Kirtley v. Deck, 2 Munf. 10; Wilson v. Crowdhill, Id. 302; Hall v. Smith, 3 Id. 550; Sexton v. *Holmes, Id. 566; Beverley v. Holmes, 4 Id. 93; Don aghe v. Rankin, Id. 261; Moseley v. Jones, 5 Id. 23. — 3rdly, That no serious inconvenience can be sustained, even in causes now pending, since in every case, upon motion, a second count in debt upon the new promise or acknowledgment, or a count in in-debitatus assumpsit, may be added for the amendment of the declaration. — 4thly, and lastly, That by considering the promise or acknowledgment as a new promise, it binds none but the promiser, and thus avoids the unreasonable principle, that after the liability of the surety in a note, is completely taken away by the statute, it shall be restored to its full force against him, by the acknowledgment or promise of the principal alone; Whitcomb v. Whiling, 2 Doug. 652, which though questioned in Atkins’s ex’ors v. Tredgold, 2 Barn. & Cress. 23, 9 Eng. C. L. R. 12, seems to have been since approved by some judges; Perham v. Raynal, 2 Bing. 306; 9 Eng. C. L. R. 413.

With respect to this case I have no doubt. Where the plaintiff relies on a conditional promise to take the debt out of the statute, he must shew the condition performed, before he can avail himself of the promise. This position is sustained by many authorities ; an'd though in some, the condition insisted on does not appear to me, to be, properly speaking, any condition at all, yet where, as in this case, there is a real and not a mere nominal condition, the principle seems to be unquestionable. Thus although a promise “to pay when I am able,” involves no real condition, and should therefore be taken to be a promise to pay absolutely, yet a promise to pay “if a collateral security should be first resorted to and prove deficient,” is, to every intent and purpose, a conditional promise, and must be performed, before the party can be charged.

But it is said that this promise having been made before the expiration of the five years, the party was then bound, and had no right to clog the promise of payment with a condition. This would have been very true, had the suit been brought within the five years. But when after the lapse of z'five years, it became neces- : • sary for the plaintiff to lay hold of this promise, he must take it as he finds it: he must take it altogether; he cannot garble it. He may renounce it altogether or he may take it altogether; but it would be without example to permit him to take as much as would suit his purpose, and reject the rest. : ; ■

The case of Hyeling v. Hastings, 1 Ed. Raym. 389, 421, justifies, I think, no such position. The remarks of lord Holt, when the case was first before the court, leaned that way: but on the final judgment, the court said, “Prove your debt and I will pay you, is as strong as an express promise, after the condition is performed; viz. the proof of the debt, which ought to be done in evidence upon the indebitatus as-sumpsit.” As to the case of Scales v. Jacob, 3 Bing. 638, 13 Eng. C. L. R. 85, the court was divided on this point. It furnishes, therefore, no barrier to the free exercise of the judgment upon the question; and as I have already said, my mind is perfectly satisfied, that no conditional promise can take a debt out of the statute, unless the condition be performed; and even when performed, it must be considered as a new promise, and not as the debt, since the old debt was unclogged by . the condition. The two contracts are radically and essentially different in this, that the one is conditional, the other without condition. : : :

Judgment affirmed.  