author: Kent, J. Lewis, Ch. J. Radcliff, J. Lewis, Ch. J.

text:
    The President, Directors and Company of the Union Turnpike Road against Jenkins. The Same against The Same, in three other actions
    The president and directors of a company, when legally chosen, are the proper persons to execute acts ordered to be done by the president, directors and company, and a promise to pay as the latter may order, is broken by not paying, according to the order of the president and directors. The ■ interest acquired by subscribing for shares in the stock of an incorporated company, is a good consideration to support an action against the subscriber. The promise to pay in such cases as the president, directors and company may order, is not such a promise as will support an action fpr a promissory note. Where there are some good counts and some bad, and a general verdict on the whole, if the evidence has been on the good counts only, the verdict may be amended from the judgeis notes, after notice of motion in arrest of judgment.
    By an act of the 3d of April, 1801, (c. 118,) certain persons were incorporated, for the purpose of improving the road-from New Lebannon to Hudson, under the name of “ The President, Directors and Company of the Union Turnpike Road.”
    By the second section of the act, it is ordered “ that Robert Jenkins and Elisha Williams be, and they are hereby appointed commissioners, to do and perform the several duties hereafter mentioned, that is to say, they shall, on or before the first day of May next, procure two books, and in each of them enter as follows: We, whose names are here unto subscribed, do, for ourselves and our legal representatives, promise to pay to the President, Directors and Company of the Union Turnpike Hoad, twenty-five dollars for every share of stock in the said company set opposite to, our respective names, in such manner and proportion as shall be determined by the said president, directors and company ; and every subscriber shall, at the time of subscribing, pay unto either of the said, commissioners the sum of ten dollars for each share so subscribed ; and the said commissioners shall, as soon as one thousand shares have been subscribed, cause an advertisement to be inserted in the public newspaper printed in Hudson, giving at least ten days’ notice of the time and place the said subscribers shall meet for the purpose of choosing five directors, who shall be stockholders, for the [*382] purpose of managing the concerns of the said company for one year; and the day of choosing the said directors shall thereafter be the anniversary day of choosing directors; and the directors elected by the votes of the stockholders shall immediately proceed to the choice of one of their members for president; and the said president and directors shall and may meet from time to time, at such time and place as they may, by their by-laws direct, and shall have-power to make such by-laws, rules, orders and regulations, not inconsistent with the constitution of this state or the United States, as shall be necessary for the well ordering of the affairs of the said corporation: Provided, that at the election of the directors, every person shall have a Dumber of votes equal to the number of shares owned by such person, if such number shall not exceed fifty, and one vote for every three shares owned by such person, exceeding fifty.”
    By the last section it is enacted, “ That it shall be lawful for the said directors to call for and demand of and from the stockholders respectively, all" such sums of money by them subscribed, or to be subscribed, at such times and in such proportions as they shall see fit, under jvhu of forfeiture of their shares, and of all previous payments made thereon, to the said president, directors and company."

    The defendant had subscribed for 280 shares, but, at the period of writing his name in the book, as directed by the first section, the 10 dollars therein ordained to be, at that time, paid, were neither so paid, nor were demanded. Two orders for paying in 5 dollars on each share subscribed, were made, with which the defendant refused to comply, and for their amount the present actions were brought.
    The first count in the declaration stated the passing of the act, and incorporating the company. It also set forth the second section, omitting, however, that part requiring the payment of the 10 dollars on each share at the time of subscription ; it went on averring the compliance with the requisites of that section, the subscription of the defendant, and of 2,900 shares; it stated the election of a president and * directors, and two Orders mane by them [^383] for payment of two instalments of 5 dollars cash, on each share subscribed, notice, and by reason whereof, &c.
    The second court was in these words: “ And whereas also the said Thomas Jenkins, on the 7th day of April, 1801, at the city of Albany, in the county of Albany, made his certain promissory note in writing, by him, in his own proper hand-writing subscribed, the date whereof is on the same day and year aforesaid; whereby the said Thomas promised for himself and his ■ legal representatives to pay to the President, Directors and Company of the Union Turnpike Eoad, the sum of 25 dollars for 'every share of stock set opposite to his name, in such manner and proportion, and at such time and place, as should be determined by the said president, directors and company; and the said Thomas did then and there set opposite to his name “ fifty shares,” with an averment of their determining that he should pay 5 dollars on each on the 10th of September then next, with notice, liability and assumption.
    The third count was in the same form on a promissory note, for 280 shares.

      The causes were tried at the Albany circuit, in January last, and general verdicts found for the plaintiffs.
    After this the defendant gave notice of moving in arrest of judgment, and assigned the following reasons :
    1st. That the first counts in the declarations in the said causes, being founded upon the statute, do not set forth that the said defendant at the time of subscribing the said subscription, paid to the said commissioners the 10 dollars on each share by him subscribed, according to the regulations of the said act, and that it appears by the said counts that the commissioners therein named did not, as soon as 1,000 shares were subscribed, in the manner directed by the said act, proceed to give the notice by the said act required, for the purpose of choosing directors, and that no order and determination of the president, directors and company, in the said declarations mentioned, is stated in the said 'first counts, fof the payment of any money, [*384] upon the shares of stock therein mentioned to have been subscribed; so that the defendant never became liable to pay any such money, and that the promises in the said first counts stated, are void for want of consideration.
    2dly. That the second and third counts in the declarations in the said causes, are founded on agreements or promises in writing between the parties, as on a note of hand, which is not within the statute, &c. and that the said counts do not set forth any good or valid consideration, upon which the said agreements in writing were made and given.
    Immediately after service of notice of the above reasons in arrest of judgment, on an affidavit stating that the evidence offered at the trial was under the first counts in the declarations, and calculated to support them in particular, (the second and third counts not being read to the jury, nor referred to by the counsel,) the plaintiffs gave notice of a motion to amend the verdicts in the several suits from the judge’s notes, so as to make them apply only to the first counts in the several declarations, and to enter verdicts on the second and third counts for the defendant, and to amend the postea and rules for judgment entered thereon in conformity to such order as the court might make. Both motions (that for arresting the judgment and that for amending the verdict) were brought on together.

      Champlin, for the defendant.
    The first objection is, that the ten dollars, ordered by the act to be paid, was not so done. The contract, then, on which the action is founded, is not according to the order of the statute. In the next place, the orders stated by the declaration to have been made for payment of the sums demanded, are not in pursuance of the law. By that, the order is to be by the president, directors and company ; the declaration sets forth one by the president and directors only. This is fatal, for as the plaintiffs have a particular authority, they ought to show a strict literal compliance with the law by which they are authorized. If they have a right to omit the company in their orders, they may the directors, and so the presi-' dent alone may govern the affairs of the corporation. The two last counts are plainly bad; they are on promissory *notes, under the statute, where those notes [*885] appear to depend on a contingency. The declarations, therefore, on them, cannot be maintained. Carlos v. Fancourt, 5 D. & E. 482. For a note on a contingency is not a note within the statute. Hot that such a note cannot be declared on, but then it must be as special agreement, and the consideration set out. As to the notice to amend, it is before the court; they, perhaps, will not be disposed to allow it. We object, however, that the application is too late, because a term has intervened, and the evidence which was given in one count would equally apply to all. Yet if we are wrong in this, if the court should give leave to amend, they will not do it without ordering, at the same time, a new trial. Tomlinson v. Blacksmith, 7 D. & E. 132.

      Williams and W. W. Van Ness, contra.
    The application on the part of the plaintiffs is to amend the verdict from the notes of the judge, so as to apply the. evidence to the first count only, and to enter verdicts for the defendant on the second and third. It is evident that the testimony could have gone only to the first, for the two last are stated simply as contracts, though the form be somewhat like that on a note of hand. They were engagements to an organized company; and it was only in relation to lliat company that they were taken; they must, therefore, comport with the defendant’s liability to that company, under the first count. When a general verdict is given, it is almost of course to amend, if that verdict does not correspond with the judge’s notes. 8 D. & E. 659. So in Eddowes v. Hopkins,

       it was ruled that if the evidence be only on a good or consistent count, and there be others bad in point of law, a general verdict given on the whole declaration shall be amended according to the judge’s notes. Even in a criminal case it has been done, and the criminal executed according to the amendment. Grant v. Astle, Doug 722.
    In slander, it is true, where some counts are for words not actionable, and others for words actionable, on a general verdict, judgment will be arrested, but even then [*386] the *court will order a venire de nova (Beedle v. Hopkins, ante, 347,) to assess damages on the good count. An application like the present is never too late. In 1 D. & E. it is said an amendment will be ordered even after error brought, and the record sent back from the exchequer chamber. The same principle is found in Taylor v. Whitehead, Doug. 746. If we are successful on the point of amendment, all objections taken to the second and third counts are at an end. But even should these be objected to, we contend they are good. The instrument declared on is an engagement in writing by which the defendant promised to pay. The being a note in writing is enough, and purports a consideration, though none be stated. 2 Bl. Comm. 446. Pillans v. Van Mierop, 3 Burr. 1670.

      * Tan Ness.

    A written contract, without 'con sideration, may be declared on as it is.

      Williams.

    That the contract was not consummated by paj^ment of the 10 dollars required by the act, is also urged as a reason why the action cannot be maintained, but surely the commissioners might have dispensed with this. As to thé objection that the promise was given to pay such sum as the president, directors and company should order; and that the order was only by the president and directors, it can hardly be thought the defendant ever hoped to rely upon it. The president and directors are the agents of the company, duly chosen by them to physically and legally express their will. The order made by the president and directors, is an order tfiade by the company. This follows necessarily, for the president and directors are, by the words of the law, to manage the concerns of the company, to act; when they were chosen, the powers of the company to act were transferred to them, and this being under the letter of the statute, they were the only persons to make the order. Had it been complied with, the defendant would never again have been called upon for any thing paid under it. ■■

         In that case the amendment was by altering the verdict from a sn:®L’ to a larger sum; which amendment was moved for, on the face of the declaration. The court said, in fact, we cannot load the defendant with more than the jury of his country has determined, without sending him back to another jury.

        а) Petrie v. Hannay. There were two issues in that case; the verdict was on one, and no notice taken of the other; the amendment was allowed after error brought, and this'assigned as a cause, on payment of costs.

       Doug. 377. See also Williams v. Breedon, 1 Bos. & Pull. 329.

        Green v. Rennet, 783, per Buller, J. But that case does not apply to amendments of verdicts. It relates to amending mistakes by the act of the clerk, where there is something to amend by. As if he enter against at executor judgment de bonis prapriis, instead of de bonis testataris.

        In Dumond v. Carpenter, 2 Johns. Rep. 184, the court allowed an amendment by suggesting the death of one of the defendants below, after error brought, and the death of such defendant, before the entry of interlocutory judgment, assigned for error. See Richards v. Brown, Doug. 114. Hamilton v. Holcomb and others, 1 Johns. Cases, 29.

       The decision referred to is very different. A verdict had been found for the defendant, a motion for a new trial on account of the verdict’s being against evidence had been denied, after which the plaintiff obtained a rule to show cause why he should not be allowed to enter up judgment on that Issue, because, notwithstanding the finding of the jury, the point of law was in favor of the plaintiff The court said this being a motion in the nature of one for an arrest of judgment, was never too late before judgmeht entered up.

         The two books cited will certainly warrant the position of the learned counsel, but the parts referred to are not law. In Sharington v. Strotton, (Plowd. 358,) it is'said, “By the law of this land there are two ways of making contracts or agreements for lands and chattels; the one is by words, which is the inferior method; the other is by writing, which is the superior. And because words are oftentimes spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration. But where the agreement is by deed there is more time for deliberation; for which reason they are received as a lien final to the party, and are adjúdged to bind the party without examining upon what cause or consideration.they were made.” The reader will observe that when Plowden speaks of contracts by writing, he means by deed under seal. This is more explicitly declared in the case of Rann v. Hughes. Baron Skynner there says, “ All contracts are, by the law of England, distinguished into agreements by specialty, and agreements by paroi : nor is there any such third class as some of the counsel have endeavored to maintain, as contracts in writing. If they are merely written, and not specialty, they are paroi, and a consideration must be proved.” In Pillans v. Van Mierop, Wilmot, J., argued, that if a stipulation, which was only bywords, was, according to the civil law, binding without consideration, a fortiori, so must be an agree" ment in writing. But the civil law itself will not warrant this reasoning. The obligatory force of a stipulation arose from the words being spoken in a precise form, before a public officer; for if that form was not adhered to, the stipulation was void; therefore, if to the question peohittis, the party stipulating had answered spondeo, the stipulation was a nullity. I am, therefore, disposed to think that the stipulation was taken in the manner of our recognizances, and, when acknowledged, became a species of record. I am peculiarly induced to this opinion from the manner in which they are now entered among the acts of the court, in those of the English tribunals which follow the civil code; and also from considering, that the reduction of a contract into writing did not, even by the rules of the Roman jurisprudence, preclude from entering into the consideration on which it was made. By that system the ohligatio literarwm, arising 'from the contracts ex literis, was invariably contestable in the three following cases: 1st. When the consideration was not expressed; 2d. Even then within two years; 3d. In all cases of loans of money, by the exceptio de non numerata pecunia, which threw the enus of proving a consideration upon the plaintiff. The Codex, too, is express that no form of words or writing, hut assent alone, formed the contract. Cod. lib. 2, tit. S. 1, 11.

   Kent, J.

That doctrine has been completely overruled in a ease where Skynner, Baron, delivered, in the house of lords, the unanimous opinion of the twelve judges. Rann v. Hughes, 7 D. & E. 350.

Lewis, Ch. J.

This court has decided that a contract merely in writing, does not supersede the necessity of a consideration.

jHixrison, in reply.

In support of the notice in arrest of judgment, nothing can be more clear than that where entire damages are given, and one count is bad, the judgment must be arrested. But in this.declaration there is not one good count, and this is -apparent on the face of the record without any aid aliunüe. On the first count the objection as to the order is certainly fatal. The act operating like a charter, specifies a particular manner in which *the orders or the subscribers are to be made; the [*388j by-laws of the company are not to oppose the laws of this state, or the laws of the union; and yet, supposing the company to have authorized the president and directors to make orders on the stockholders, that very authority can be supported only by allowing a violation of the law itself by which the company is incorporated. If one branch of those by whom a specific act is ordered to be done, can be dispensed with, another may, and there is no saying how far this principle is to be carried; no power can be exercised under the statute but what is created by it, and executed in the manner it prescribes. On the point of consideration, the authority from 5 D. & E. is decisive; no consideration appears by the declaration. The amendment asked must be denied, because it is evident whatever went to support the first count, must have been applicable to the second and third counts, which were on the same note as that mentioned in the first: if so, Eddowes v. Hopkins, relied on by •the plaintiffs, shows the amendment cannot be granted.

Radcliff, J.

delivered the opinion of the court. In this .case there is a motion in arrest of judgment, founded on objections made to all the counts in the declaration.

The counts are three in number, and the objections which apply to all are,

1st. That the promise or contract set forth in the declaration is void for want of consideration, and connected with this is another objection, which was distinctly urged, that the first instalment of 10 dollars not being paid, the contract was incomplete, and not obligatory on the company, and therefore also void.,

2d. That the commissioners appointed by the act did not, as soon as 1,000 shares were subscribed, give the notice required by the act to choose directors.

3d. That no order or determination of the president, directors and company, requiring the payment of the instalment in question, is stated in the declaration to have been made.

*4th. To the second and third counts there is a further objection, that the plaintiffs have declared on the promise or subscription in writing, as upon a. promissory note within the statute.

As to the first, the form of the subscription which contains the promise, is prescribed by'the act in the following -terms: “We, whose names are hereunto subscribed, do for ourselves and our legal representatives, promise to pay to the president, directors and company of the Union Turnpike Road-, the sum of 25 dollars for every share or stock in said company, set opposite to our respective names, in such manner and proportion, and at such time and place, as shall be determined by the said president, directors and company.” The declaration states the plaintiff’s subscription in these terms,,but does not aver that the 10 dollars oil each share were paid, and which the act required the defendant to pay at the time of subscription.

We cannot discover any ground on which this promise ought to be considered as void. The subscription was taken by commissioners who were authorized to receive it, and in the form prescribed by the act. That form 'contains an absolute promise to pay the money to the president, directors and company. On the one side, the interest of the company in selling the shares, and the public advantage to be derived from the success of the institution ; and on the other, the expected profits to accrue from the stock, were sufficient considerations to uphold the promise. By force of the act itself, also, it must be considered as good. The legislature also must have intended that it should be obligatory, for else the formal manner in which it was prescribed to be taken would be senseless and nugatory. We cannot imagine that a contract in terms so express and complete should be designed to mean nothing.

The last section of the act by which the company was created, cannot, in my opinion destroy its effect. It is thereby further enacted, that the directors may call for and demand the sums so subscribed, at such times and in such proportions as they shall see fit, under the pain of the forfeiture of the shares and all previous payments. This provision was ^designed as an additional se- [*390] curity for the proportion of the shares which should remain unpaid, and to enable the company, by a decisive measure, to compel the prompt payments which the objects of the institution required. They had an election to adopt this expedient, and exact the forfeiture, or to enforce payment in the ordinary course by a suit on the original contract. Hot having insisted on the forfeiture, they, of course, have a right to maintain this action.

The objection which is founded on the idea that the contract was not obligatory on the company, and, therefore, not mutual in its operations, we also think is not well taken. The subscription was for the full sum originally due foi each share. The 10 dollars on each share were due immediately, and the engagement with respect to that sum was like a note or obligation payable on demand. The contract was complete, and -the defendant had a right to tender the payment of the 10 dollars, and demand its performance on the part of the company, who had an equal right to enforce it against him. Neither party could revoke it without . mutual consent, or a default on the adverse side. We, therefore, consider the contract as reciprocally binding, and founded on a valid consideration.

The second objection is, that the commissioners appointed, by the act did not, as soon as 1,000 shares were subscribed, give notice to the stockholders to choose directors. This ■was, we think, properly relinquished by one of the defendant’s counsel. It does not appear when the precise number of 1,000 shares was subscribed. The defendant subscribed his shares on the 17th of April, 1801, and it is averred, that on the 21st of the same month upwards of 1,000 shares, to wit, 1;990 were subscribed, and that the commissioners, "on that day, gave notice to choose directors. The particular time of giving this notice, after 1,000 shares were subscribed, could not be material. The act in this respect was merely directory to the commissioners, and if they did not strictly execute their trust, it could not affect the existence of the company, nor any contracts made with them.

*The third objection is, that no order or determination of the president, directors and company, requiring the payment of this instalment, is averrred. It is averred that the president and directors only made the order. The promise was made to the president, directors and company, according to the form prescribed by the act, and it is therefore, argued that this order ought to have been made by the company, as well as by the .president and directors. This criticism ought not to prevail against the only practicable construction that can be given to the ihode of executing the powers of this corporation. It is obvious that the company in their collective capacity, can never act. The president and directors are their representatives, and they alone are authorized to manage the concerns of the company. The "act invests them with this power, and it is thus set forth in the declaration. They alone could require the payment in question, and the order was properly made ■by' them.

4th. The last objection applies to the 2d and 3d counts only, in which the plaintiffs have declared on the ■ defendant’s subscription as upon a note o'f hand, without setting forth the act or any consideration to support the defendant’s promise. It is not expressly declared upon as a note within the statute concerning promissory notes, but the counts can be supported on that idea alone, for they do not state any consideration independent of the making of the note. The shares of stock to which the defendant would be entitled, are not set forth "as the consideration of the promise, but "merely as descriptive of its extent, and as designating the amount he undertook to pay. These counts, therefore, cannot be maintained unless the note be considered to come .within the statute, which we think it does not. Although by the note the defendant promised to pay 25 dollars for each share, it depended on the future operations of the company, which was not yet organized, whether the whole or any part of that sum would finally "be demanded or become due. The payment was, therefore, uncertain and contingent, and such a note has frequently *been held not to come within the statute, and can [*392] be declared upon only as special agreement,

These counts being, therefore, defective, and the verdict general, the judgment ought to be arrested, unless the verdict be amended by applying it to the first count in the declaration. An application for that purpose was made by consent, concurrently with the motion in arrest of judgment. And if the judge, before whom the cause was tried, will certify that the evidence applied solely to that count, or, as we apprehend the correct rule to be, that all the evidence given would properly apply to that count as well as to the others, we think the amendment ought to be allowed. The practice of amending in such cases is well ' established, and is consistent with reason and justice to the parties. The result of our opinion¡ therefore, is, that the judgment be arrested, unless such amendment'be made, and in- that case that the motion be denied.

Lewis, Ch. J.

These are actions of assumpsit brought by the president, directors, and company of the Union Turnpike Road against the defendant Thomas Jenkins, on two several subscriptions amounting to two hundred and eighty shares in the capital stock of said company, for certain payments called for, pursuant to the act of incorpora" tian, by the said president and directors.

The declaration contains three counts. The 1st sets forth the act of incorporation, the formation of the company pursuant thereto, the subscription of the defendant, the call for certain payments of seven dollars on each share, and his refusal to pay, whereby he became liable, &c.

The two remaining counts are on the several subscriptions of the defendant, as on his promissory notes.

■A verdict was found generally for the plaintiffs, and the cause is now before us, on a motion in arrest of judgment, on the part of the defendant, and a motion, on the part of the plaintiffs, to amend the verdict by the notes of the judge who tried the cause, so as to confine it to the first count in their declaration, on an affidavit that no evidence was offered on the other counts.

*The principal ground of the motion in arrest of [*893] judgment, is the alleged want of a consideration to support the promise without which, it is insisted, the action is not sustainable. On the record no consideration is stated; no loss or gain to either party; and, testing the conduct of the commissioners by the provisions of the act none is to be found, in my opinion, in the contract itself. The act requires that to constitute a stockholder, he shall subscribe an engagment in the words following: “We, whose names are hereunto subscribed, do, for ourselves and our legal representatives, promise to pay to the president, directors, and company of the union turnpike road, the sum of twenty-five dollars for every share of stock in the said company, set opposite to our respective names, in suchmannor and proportion, and at such time and place, as shall be determined by the said president, directors, and company.” It also further requires, that every subscriber shall, at the time of subscribing, pay unto either of the commissioners, the sum of ten dollars, for each share so subscribed. The subscription and payment are both essential to the con» summation of the contract. These were cotemporanéous acts.

The declaration states the subscription by the defendant merely, without averring any payment or demand of the ten dollars on each share; and it was admitted, on "the argument, that, in fact, they were neither demanded nor paid.

I cannot see, then, any consideration for this promise; and the legislature appear to have been, apprised of the inconvenience that might arise from this source, and have provided for it, in some measure, by the last clause in the statute, which gives a power to the directors to call for, and demand, of and from the stockholders respectively, all such sums of money by-them subscribed; or to be subscribed at such times, and in such proportions, as they shall see fit, under pain of forfeiture of their shares, and of all previous payments made thereon.”

Suppose the speculation had been an advantageous one, and before the first call of the president and directors, the stock had risen considerably in value, could not [*394] the directors, *with propriety, have refused to consider Mr. Jenkins as a stockholder, on account of his not having made the payment required by the act on his subscribing ? I think they could. No positive benefit, then, arising from the future emoluments of the company transactions, can be considered as a consideration for the promise, and if it could none such is stated on the -record.

Notwithstanding the motion to amend, it was insisted 'the suit was maintainable on the 2d and 3d counts. I think not For a promise to pay on a contingency, which may, or may not happen, cannot be declared on as a note of hand. The instrument must be payable at all events.

The propriety of amending I need not consider, as I am of opinion, no suit can be maintained on the first count foi want of a consideration.

I am of opinion judgment ought to be arrested.

Motion to arrest the judgment denied; that for amendment granted.

       See Fire Department v. Kip, 10 Wen, 266; McFarlan v. Triton- Ins. Co. 4 Denio, 392.

         The payment of a bill or note must be absolute; and at all events, independent of any uncertainty or contingency. See Kingston v. Long, Raym. 8; Appleby v. Bidulph, 8 Mod. 362; Roberts v. Peake, 1 Burr. 323; Beardsley v. Baldwin, 2 Stra. 1151; Pearson v. Garrett, Comb. 221; Haydock v. Lynch, 2 Id. Raym. 1533. The distance of time at which the payment is to be made is immaterial, if on an event which must necessarily happen; as six weeks alter the death of the defendant’s father; (Cooke v. Colehan, 2 Stra, 1217 ;) and events of a public nature for which the faith of government is pledged, are deemed moral certainties, and not contingent; as the paying off a ship of war. Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood, 1 Wils. 262.
      See also Worden v. Dodge, 4 Denio, 159; Ketchell v. Burris, 24 Wend. 456; Dutchess Cotton Manufacturing Co. v. Davis, 14 J. R. 238; Goshen Turnpike Co. v. Hatin, 9 J. R. 217.

         Bayard v. Malcolm, 2 Johns. Rep. 550, and, quœre, what the law is now?

       See Elliott v. Skypp, Cro. Car. 338; Williams v. Jones, Barnes, 6; Hankey v. Smith, ibid. 449; Newcombe v. Green, 2 Stra. 1197; Doe v. Perkins, 3 D. & E. 749; Bois v. Bois, 1 Lev. 134; Bold's Case, Salk. 53; Halloway v. Bennett, 3 D. & E. 448 ; Bolde v. Walter, 1 Roll. Rep. 82; Petrie v. Hannay, 3 D. & E. 659.
      See also Picket v. Snyder, 9 Wend. 416.

       See Holt v. Scholefield, 6 D. & E. 695, where Lawrence, J., says, if the ividence apply to the bad as well as the good counts, the amendment from the judge’s notes cannot be made, because (per Buller, J., in Eddowes v. Hopkins, Doug. 377) “it is impossible for the judge to say on which of the counts the jury had found the damages, or how they had apportioned them.'

       After pronouncing the judgment of the court, Radcliff, J. observed, that he thought the regular practice was to obtain the certificate of the judge before whom the cause was tried, that the evidence applied only to the count on which it was meant to enter judgment. Kent, J., who tried the cause, said, the affidavit of the plaintiff’s attorney was correct, and therefore he deemed it sufficient for the amendment. In this the bench concurred.

       Judgment reversed, (1 Caines’ Cases in Error, 86,) on the ground taken by Lewis, Ch. J., as to the first count.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People against Freer.
    If a defendant has been prevented by adverse winds, from showing cause against a rule for an information, and the same has been made absolute for want of cause shown, the court will set it aside of course, on an immediate application.
    A Rule had, in the last term, been granted against the defendant to show cause, on the first day of the present term, why an information should not be filed against him, and no cause having been shown on the day appointed, the rule was made absolute.

      Hoffman

    now stated to the court, that the defendant had been prevented by adverse winds, which detained himself counsel and papers, until after the rising of the court on the first day of the term, and prayed that the rule mighty be enlarged.

       See The People r. Van Wyck, 2 Caines’ Rep. 334

   Per Curiam.

It is oí course; take your motion, but show cause on the first non-enumerated day.

Motion granted.


author: Livingston, J.

text:
    Brandter, ex dem. Fitch and others, against Marshall.
    If a tenant enters under a lease, holding over after its expiration, is not evv donee of adverse possession. So, if the tentant’s son come in under him.
    Ejectment for lands in West Chester, tried in June, 1801, before the Chief Justice. The case stated that the plaintiff produced and proved:
    *lst. A paper signed Joseph Marshall, the father of the defendant, dated 6 th September, 1758, by which he acknowledged that he had, about six years before that period, taken possession of the land in question, under Thomas Fitch and John Raymond, and that he then held the same under them as his landlords.
    2dly. The counterpart of a lease executed by the said Joseph Marshall, by which the said Thomas Fitch, and John Raymond demised to him the premises, for three"years then next ensuing, at a reserved annual rent of one shilling, of any payments of which no testimony was given; but it was given in. evidence, that some time subsequent to the lease, two suits for forcible entry and detainer were brought against the said Joseph Marshall, relative to the land in question, and that, on these occasions, Joseph Marshall applied to Thomas Fitch, who defended him therein ; that he was turned out of possession in one of those suits, but afterwards restored; that Joseph Marshall died intestate in 1774, and letters of administration were granted to his son Joseph; that Joseph Marshall, the father, died in a house on the premises, in which he resided with several of his sons, who were of age, and had, for some years past, worked the farm; but whether on their own account or that of their father, did not appear.
    It was further proved, by two witnesses,, that they were present at a sale by auction of the effects of the intestate, when they were told by the administrator and auctioneer, that the defendant had purchased the possession of the land in question.
    One of the witnesses, who was a neighbor of the defendant, deposed, that, according to his supposition, the defendant held the lands ever since by virtue of the purchase: and another proved that he was the youngest son of the intestate, and not his heir at law. It was also in evidence, that the defendant had in his possession the lease granted to his father; that Thomas Fitch died in 1775, and some of the. lessors of the plaintiff are his heirs. On the part of the defendant it was established, that he had been in the actual and peaceable possession of the premises from" the death of his father to the present time, holding *and claiming them as his own, and that no rent [*896] had ever been paid by, or demanded from, him.
    The judge, on this evidence, charged the jury, that if they beleive the defendant hold the land under his father’s title, they ought to find for the plaintiff; on which direction the jury brought in their verdict accordingly.
    On these facts a motion was made for a new trial

      Hoffman, for the defendant.
    We contend that cu the circumstances, as presented by the case, the judge ought to have directed for the defendant, and not for the plaintiff. The facts, indeed, are but limited; some principles, however, -are involved, which it is of the utmost importance to have decided. For, admitting that the defendant claimed under his father, still, we insist, the plaintiff, as appears from the case itself, is not entitled to recover. There is no evidence of title whatsoever from the expiration oí ¿he lease in 1758. That, then, being only for the years, expired in 1761. After 1761, the lease is no evidence of a possessory right in the plaintiff to have the premises, unless subsequent acts of the defendant can be shown equivalent to an acknowledgment that his title was under the lease. Without resorting to authorities, principles of law will bear out the position. The lessor’s right commenced in 1761. It was incumbent on him then to have entered, or have exacted some acknowledgment, which rendered the entry unnecessary. He was out of possession for 40 years without receipt of rent or profits; if his right did then accrue, and was not pursued, the defendant remaining in ■ quiet possession, the court will not intend he held under the present plaintiffs. For the holding was tortious, against their right. If this be not so, where is the doctrine of the opposite side to carry us ? If it be acceded to, any one entering under a lease, is it for ever to be supposed to hold under it; 200 years’ quiet possession might be shown, and yet no title acquired. To evince that when the lease determines, the plaintiff should have entered, Emm. on Eject. 60, is.fully in point. “ Nor is a common person affected by the statute of limitations, where the possession is in the' hands of his tenant, who has paid him rent within [*397] the *time of limitation; for the possession of a lessee for years is the possession of his lessor, and payment of rent is an acknowledgment of the possession. So that during the continuance of the lease, and payment of rent, the lessor is in no sort of default, for he cannot enter and take the actual possession till the lease be expired; but then, it seems, he should, because his right of entry then first accrues.” The court will find the same principle recognized in England v. Slade 4 D. & E. 682. It was there ruled, that a man entering under a lease cannot, pending the term, contradict his lessor’s title, but after the time has expired, he may prove his landlord not entitled, by producing the lease; in which case, the landlord must show a better title. The lease, therefore, given in evidence, only shows a right of possession against us till 1761, and no longer. Even for that time, no rent was paid, and it ia to be observed, that the reservation was merely nominal. But the fact really is, that none ever ivas paid. It is next to be observed, that the jury were not warranted in finding the son took under his father. There is no evidence of this fact. The defendant might have taken as a stranger, and then this lease would have been totally out of the question, because he would have come in as a third person, and not affected by it. He was also the youngest, and not the eldest son. The testimony that ho did derive title under his father, is hearsay throughout, and, therefore, the judge ought to have charged that it was not entitled to any credit. The auctioneer, and some one else, told the witnesses that the defendant had purchased the possession; but this was not done in his presence, nor is any acknowledgment of the fact substantiated: the declaration was made by a third person, and never assented to. This, surely then, cannot be evidence. On the contrary, the testimony in behalf of the defendant demands a presumption that he held adversely, and so the judge ought to have charged: it ought to have been laid down to the jury, that there was sufficient for them to presume an adverse holding. The principle of this doctrine has been recognized in this court, in Van Dyck v. Van Beuren & Vosburg, ante, 89. That*was a case of tenancy in common, and [*398] yet there the court said, after 40 years* possession by one tenant in common, the jury ought to have been directed to presume an ouster. If, then, this be law between tenants in common, a fortiori between others. It is impossible here to presume otherwise, for could it be so, the doctrine would extend ad infinitum, and a lease once shqwn, would be an argument for holding under it for ever. The inconvenience this would lead to, ought to be an argument against it. The plaintiff therefore, should have shown, as his lease had expired 40 years ago, a title paramount; for it is possible neither party have -a right.

      Hanson, contra.
    It has ever been a principle, of law, that where a person enters under a title from another, the person so entering never can dispute the right of the original holder. So where the relation of landlord and tenant has subsisted between the parties, though there should be a holding over, the tenant, in an action against him, cannot •contradict the title of the lessor. If this be a mistake, it is so in the very foundations of the law. For the general principles thus stated, and to show that a lessee cannot ¡dispute the title under which he has entered, the court will find an authority in 2 Black. Bep. 1259. These positions are not altogether denied by. the counsel for the defendant, but they are qualified by saying, when the lease expires, ' if the party entitled to the possession does not enter, the relation of landlord and tenant' is at an end. Surely, however, if the lessee, on the expiration of his term, continues to possess, by the tacit consent of his landlord, he is tenant at will, or at least from year to year accountable for the value of the rent, when the owner may think proper to demand it. But he may lose his right, to the rent, by neglecting to apply for it within six years. On examining the doctrine in Runnington, it will be found to apply merely to leases taken by third persons. Where the lessee parts with the land, if he pays rent, still the statute does not run. This is not the case of lessor and lessee, but of an assignee of a lessee. The decision in 4 D. & E. will be seen to have settled only that *where a person enters [*399] under a landlord, it shall be competent in him to show that the title of the landlord has terminated, and that the landlord himself held by a lease which has expired. [f this had been so, then it might have been shown that Fitch himself held only as lessee. But till shown it cannot be presumed, for in all cases the presumption of law is, that the party under whom the holding is, has a fee. See Stokes v. Berry, 2 Salk. 241. Therefore, unless it be shown to the contrary, it must be taken that Fitch had the fee, and the party continuing in possession held under that fee. Should this be the law, it is asked, what becomes of the statute of limitations? This brings it to the question, whether the statute applies when the possession is not adverse ? The whole of the facts stated by the case, show no more than a holding by sufferance, and, under such circumstances the statute does hot apply. For though 100 years may have elapsed without payment of rent, or any acknowledgment, it is immaterial if the first entry was by the landlords consent, as no tenancy by sufferance is adverse, and in adverse cases only does the statute of limitations run. In Bishop v. Edwards, Bull. N. P. 103,104, the court will find the whole of these positions laid down. As to the reservation of the rent being nominal, the value is immaterial ; a pepper corn would be sufficient to create the relation between landlord and tenant. If this be light, the relation did subsist, provided the son entered under the father, as holding by his title. This is a question of fact, and, as in all other eases, the jury were at liberty to infei either for or against. 'What, then, are the circumstances here ? The father enters into possession under the lessors of the plaintiff, lives in the house, cultivates the land witti his sons, who, in his old age, do so likewise, and on his death, continue in the same course. On this is a disseisin to be supposed? Is it not more reasonable to imagine the sons preserved the tenure, and held as their father had done ? It is said, however, that this could not be, because in such a case the eldest son would have taken. True, had there been a disseisin, because then a fee would [*400] have been acquired. But as the *title to the premises was a chattel interest, it passed to the personal representative, and, therefore, it was properly left to the jury to determine, whether, on the facts of the sale by the administrator, the defendant did not enter under his father’s title. To say that the court and jury ought not to presume on facts, when they all lead to one point, would be an outrage to common sense; it might, perhaps, be thought, that if it was so, notice to quit was necessary. But when the defendant disclaimed to hold under the plaintiff, notice was unnecessary, and, therefore, an ejectment was brought. Admitting the case of Van Dyck v. Van Beuren & Vosburg to be as stated it only shows, there was, from the circumstances, enough to suppose an ouster; but here, the reverse is the fact, and, therefore, we contend the charge and verdict were equally right, and a new trial must be refused.

      Hoffman, in reply.
    That a jury may infer from circumstances is not disputed; but then there must he legal evidence of those circumstances before the court. That which Was given was inconclusive ; it rested on hearsay, and ought not to have had any weight with the court. The sale of the premises was merely hearsay, and it is to be observed, that the vendue was of personal estate, as if land was totally out of the question: the lease so much relied on, expired in 1761. Had we then disavowed holding under the lessor of the plaintiff, the statute would have run. Can there be a stronger disavowal, than taking to ourselves the rents and profits for forty years ? After thirty years the law will intend an adverse possession. It is not rea- . sonable that a proprietor, should permit a person to go on for forty years improving, and then set up an old dormant lease, after laying by so long. The jury ought to have been directed to presume an adverse holding, for the instant we are called upon, we assert our own right, and deny that of the lessor. On the grounds contended for by the plain ■ tiff, had the lease been dated on the day of first taking possession of this country by the British, it would have been equally efficacious. The interests of the community require a different doctrine; if for no other reason, the plaintiff ought to *show a title beyond the [*401] lease. Improvements have been made, and this, connected with a forty years’ exclusive enjoyment of rents and profits, ought to have induced from the j udge a charge to the jury, that an adverse possession was a presumption of law, and on which they ought to find.

         Where the copyholder for life, remainder in fee tc another, surrenders the whole estate, (by which he lets in the remainder,) anl takes a new estate to himself and others, it seems a holding over by him, for more than 20 years, would be a bar in ejectment by the remainder-man. Doe v. Read, 8 East, 353. But observe, that in such a case, the copyholder takes under the lord, and paramount the remainderman.

        а) Because the tenancy'is held to subsist, the holding over amounting to a tacit agreement that the original contract shall continue, Beavan v. Delahay, II. Black. 8, subject, however, to be determined on regular notice. Right v. Darby, 1 D. & E. 162. Therefore, though the rent bo withheld for more than 20 years, Roe v. Ferrars, 2 Bos. & Pull. 542, or the possession by, or under the tenant endure for 100 years,- it is not a disseisin, nor an adverse holding, upon which the statute of limitations will run; Bull. N. P. 104, because it is in subserviency to, and consistent with, the title of the landlord. On the same principle a receipt of the rents and profits, for more than 20 years, o. an estate the legal title of which is in trustees, for the purpose of'sale, cannot be set up against the trustees, or those claiming under them, if such receipt be consistent with, and secured by, the deed of trust; Keene v. Deardon, 8 East, 248, nor an outstanding title in a third person, by a party who has entered under the lessor of the plaintiff; Jackson v. Stewart, 6 Johns. Rep. 34, nor, after an acknowledgment of tenancy by a defendant, can he dispute his landlord’s title; Jackson v. Vosburgh, 7 Johns. Rep. 186, consequently, an admission by a defendant, that he went into possession under one of the lessors of the plaintiff, is sufficient to entitle to a recovery. Jackson v. Dobbin, 3 Johns. Rep. 228. Whether there be a tenancy or not, is matter of fact for a jury. Jackson v. Vosburgh, ubi sup. Qu. tamen, if it be a deduction from acts done.

        Doe v. Lawrence. In this case the lessee who was the defendant, had paid rent to the lessor of the plaintiff.

         The case is exactly so.

   Livingston, J.

delivered the opinion of the court. This is a motion for a new trial for misdirection of the judge, and because of the verdict being against evidence.

The chief justice charged the jury, that if they believed the defendant held under his father, they should find for the plaintiff, which they did accordingly.

This direction and finding of the jurj were both correct.

When a person enters under another, and transfers the possession, his grantee is supposed to hold under the same title. Although the lease be expired, he will be regarded as holding by consent of the original landlord, and as his tenant at will; unless he can show that since the expiration of it, he has acquired a new title, either from, or paramount to that of the party under whom possession was *taken. Joseph Marshall, the father, it is admit- [*402] ted, held under Pitch. He, therefore, under this rule, would not, on his mere possession, be permitted to prevail against the title of one, acknowledged by himself. The presumption that he continued to hold under Pitch is a reasonable one, nor would it work any hardship to him, as it would not preclude him from showing a better title, when he had continued in so long after the lease' had expired. The possession, therefore, in 1774, when Joseph Marshall died, must be considered as that of Pitch. The next question relates to the proof of the present defendant holding under his father. The testimony was sufficient to go to a jury and we think they have drawn the proper conclusion.

The defendant is not only his son, but ■ the contemporaneous declarations of the vendue master and administrator, although not in the hearing of the defendant, were properly admitted, and unless the defendant produced some other title, would satisfy any reasonable mind that such was the case.

There can then, be no adverse possession; for until 1774, Joseph Marshall did not set up, for aught that appears, any title adverse to that of Pitch, and since that, time twenty years, deducting the period of the British war, have not elapsed. The rule, therefore, for a new trial must be discharged, with costs, and the plaintiffs have judgment.

New trial refused.

       See Failing v. Schenck, 3 Hill, 344; Brant v. Ogden, I J. R. 156; Jackson v. Parker, 3 J. C. 124; Jackson v. Sharp, 9 J. R. 163; Jackson v. Waters, 12 J. R. 365 ; Jackson v. Thomas, 16 J. R. 293; Jackson v. Camp, 1 Cow. 605; Jackson v. Scissam, 3 J. R. 499; Jackson v. Reynolds, and note [1] post, 444.


author: Lewis, Ch. J., Livingston, J.

text:
    Nash against Tupper.
    On foreign contracts, our statute of limitations is a good plea.
    This was an action on two promissory notes, made in the state of Connecticut, and dated 28th November. 1791.

      The plaintiff declared in the common manner, adding a count for money had and received.
    The defendant pleaded non assumpsit and actio non acerevit infra sex annos.

    The plaintiff replied specially, as follows: “ And the said William, by his attorneys aforesaid, says, that he, by anything by the said Samuel above secondly in pleading alleged, ought not to be barred from having and maintaining his action thereof, against the said Samuel; because *he says, that the two several promissory notes, [*403] mentioned in the two first counts of his, the said William’s declaration, were made and given by the said Samuel to the said William, and that the cause of action in the two first counts of the same declaration mentioned, arose within the limits and jurisdiction of the state of Connecticut, and was contracted with reference to the laws and customs of the state, to wit, at Whitestown,‘in the county of Oneida; and the said William says, that by an act of the legislature of the state of Connecticut, entitled, An act for the limitations of prosecutions in divers cases civil and criminal, amongst other things it is enacted, That no suit, process, or action shall be brought on any bond, bill, or note under hand, given for the payment of any sum or sums of money, not having any other condition, contract or promise therein, but within the space of seventeen years then next, after an action on the same shall acrue. And the said William avers, that by the law of the said state of Connecticut above recited, the said William, at the time of exhibiting his said bill against the said Samuel, to wit, on the nineteenth day of January, in the year of our lord one thousand eight hundred and two, had a good and sufficient cause of action against the said Samuel, as contained in the two first counts of this said declaration, and this he is ready to verify; wherefore he prays judgment if he ought to be barred from having and maintaining his said action thereof against the said Samuel; and the said William here freely in court confesses, that he will not further prosecute his action against the said' Samuel, of, and'upon the third count in his declaration aforesaid, but doth absolutely disavow and refuse to further prosecute of and upon the said third count of hig said declaration against the said Samuel.”
    General demurrer inde, on which it came before the court

      Emott, for the defendant.
    *From the facts contained in the replication, it will be seen that the present question really is, how far the laws of Connecticut shall control the operation of those of our own state. The contract is set forth not only to have been made in Connecticut but to have been there made with a reference to the statutes there in force, and, therefore, that the seventeen years’ limitation of the right to sue formed a part of the contract. Therc%an be no hesitation in allowing that the lex loci shall regulate, when we are to decide on the validity of a contract. Our statute of limitations is, “ All actions upon the case,” &c. shall be commenced within six years after the cause of action accrues, excepting in those cases contained in the proviso; and, .to be entitled to the benefit of this, the plaintiff must show that he comes within it. He should have gone further; in addition to the contract being made in Connecticut he ought to have shown that the defendant continued to reside there till within the last six years. By the English statutes, the absence of the plaintiff takes the case out of it; with us, it is only that of the defendant; and, therefore,- a suit may be brought here when it could not there. This greater strictness in denying the effect of the proviso to absent plaintiffs, will make this court less inclined than even the English to extend the saving of the statute. If therefore, the statute would be a bar in England, a fortiori, in the state of New York. In Robinson v. Bland, Black. 241, it is acknowledged that the statute of limitations may be pleaded to a foreign contract. The words of Blackstone, J. in that case, are, “ The statute of limitations has been frequently allowed to operate on transactions abroad.” And, in the same book, p. 257, Mr. Wedderburne, in his reply, admits this; but observes, that it runs only when both parties are in England It does not affect the validity of the contract, but only the mode of recovering on it, that is, it goes only to the remedy and not to the right.
    This case, therefore, is inapplicable to the *rules [*405] laid down respecting the lex loci. The general one, as given by Lord Mansfield, ibid. 258, is, that the law of the place where the action is brought, is to be considered in expounding and enforcing the contract. To the same effect is Duplein v.De Roven, 2 Vern. 540. In 2 Kaimes,353,3d edit, it is, on this subject, said, “ Several questions arise from the different perscriptions established in different countries. In our decisions upon this head, the case is commonly stated as if the question were, whether -a foreign prescription, or that of our own country, ought to be the criterion. This should never be. made a question ; for our own prescription must be the rule in every case that falls under it, and not the perscription of any other country.” Admitting, therefore, fully the lex loci in expounding contracts, this is not a case of exposition, and does not, therefore, come with-' in those authorities. Lodge v. Phelps, 2 Caines’ Cas. in Err. 321. S. C. 1 Johns, Cas. 139, is a case in our favor. There the endorsee of a Connecticut note was allowed to proceed in his own name against the endorser. This goes to show that in all cases where the question turns on the form of action, the law of the country where the defendant is found, and not that where the contract was made, ought to prevail. Therefore, as it is not shown that Tupper was out of the state till within six years, the suit cannot be maintained.

      Gold, contra.
    By the pleadings in the case, the truth o, which stand confessed by the demurrer, the court will find that the defendant entered into the contract with a refer erice to the laws of Connecticut alone. It must have been intended, then, that the rules of those laws should be exclusively resorted to, as the measure of justice between the parties. By the code, ordained as the law of Connecticut, obligations by specialty, and simple contract demands, are placed on the same footing. When, therefore, in that state, a note of hand is taken, the creditor takes, and the debtor gives, the same security as would be created here by a specialty, or sealed obligation. As they are thus equal in their nature, the statute of limitations couples them together, and one uniform rule applies to both. If, then, the [*406] creditor *regards the continuance in his debtor of the duty to pay on every specialty which is taken, both parties imagine, and agree, that there is, for seventeen years, a continual obligation to satisfy the demand whenever called on. When the debtor executed these notes, he consented to-be bound for payment of their several amounts, and so to continue for seventeen years; during that period, it is a further part of his agreement, that no presumption of payment shall be made. It is on this presumption of payment that every statute of limitations is founded. Therefore, a promise to pay, as it rebuts the presumption, and shows the debt has not been paid, is allowed on all hands to take the case out of the statute. Nothing, then, can be more fairly inferred, than that the debtor has consented that these securities should create an obligation for seventeen years, and that, during such time, the creditor might safely repose upon them. But a distinction is taken between the contract and the remedy; that the former may remain- when the latter is lost. This is like taking from the shipwrecked his plank, with a profession that you do not mean him to drown. When a man takes a security, he looks to the period for which his debtor is obliged; thinks it shall last till then, and with a view to that it is taken. In Connecticut, the state has put notes and bonds on the same footing; but when the creditor comes to New York, he is told they consider the contracts of a different nature, and what he took as a specialty shall be no more than a simple contract. What is this but to expound the lex loci contractus, according to the law of the lex fori. There is no decision exactly in point, no judical determination ; but the following authorities may, more or less, bear on the subject. This is a mere question of exposition; or, how the parties contracted ? In support of the fee loci con

      tractus, 2 Fonb. 442, cities from Hub. Frail, tom. ii. 1. 1, tit. 3, the passage at full length. There, after laying it down that the laws of a state are properly confined to transactions within its limits, Huberus says, that in case of a conñictus legum, or variance of the laws of different countries, the laws of that where the contract is made shall prevail, with the exception of cases where, in the contract, a reference *was had to the laws of another [*407] state. So, a marriage contract made in France, shall be carried into effect in England, according to the laws of France, though contrary to the laws of England. Feaubert v. Turst, Prec, in Chan. 208. So in Alves v. Hodgson, 7 D. & E. 241, the court of K. B. refused to receive in evidence a note given in Jamaica, and not stamped according to the laws of that island. The same principle is acknowledged in Wright v. Null, 1 H. Black. 148,149, where it was ruled, that the laws of Georgia, on a question of confiscation, were to be regarded in Westminister Hall as much as in Georgia, whatever might be the opinion of the court as to their policy. To the same effect may be cited Burrows v. Jemino, 2 Stra. 732; 5 Vin. Apr. 511, pl. 22, and in Jewson v. Reed, Loft’s Rep. 138, Lord Mansfield says, a contract made in France must be governed by the laws of France, A further authority, if the credit of the reporter will make it so, is from the same book, Crawford v. Witten, 154, where, to an action of debt on a- judgment of the mayor's court of Calcutta, it was admitted, that the statute of limitations of the lex fori was not pleadable to foreign contracts. In that case, Mr. Justice Aston observed, that an action must be determined by the laws of the country in which the action accrued. But the next case which will be relied on, goes to the very remedy. It is that of Melan v. The Duke de Fitzjames, 1 Bos. & Pull. 138, in which the court determined that a man cannot be held to bail in England, upon a contract to pay money, made in France, if, by the laws of that country, his person is not there liable to be restrained for the debt. And in order to prove that such was the case then in dispute, Pothier on Obligations, and an affidavit of a counsellor of Paris, were received as evidence. Here the remedy alone was the point in question; as the laws of the community where the debt arose gave no lion on the body, it was disallowed in a case where, by the English code, the defendant was immediately liable in his person, and might be held to special bail. The English bench, against the course of their own court, and against the laws of their own land, adopted those of France, in determining the extent [*408] *to which a debtor had' pledged himself by his engagment. Chief Justice Eyre, in giving his opinion, fully adopts the doctrine of the lex loci, and observes, whatever would constitute a defence to the action in France, would in Westminister-Hall. The reverse of this must be equally true ; what is no defence in Paris, will be none in ■ London. This however, is now denied, and while the lex hci contractus is admitted to create the contract, yet it is attempted to interpose the lex fori to protect the debtor, under the idea of the laws of the jurisdiction affecting the remedy but not the contract. It is, with due submission, imagined, that the defence set up by the opposite party attached on the contract, and made a part of it. It is of the utmost importance, that a creditor should know how long he may repose on his security, without its being presumed that it has been paid. In this state, by taking a bond, he would have intended to protect himself against this presumption for twenty years. To create an equal bar to presumption, such as an obligation would have inferred, must have been in the contemplation of the parties in Connecticut; because the law gives the security taken the same advantages. If the maker and payee had, in Connecticut, been asked to expound their own contract, they would have said, it is to last and continue, firm and good, against all presumption, for seventeen years. This, then, attaches itself to, and is an integral part of, the original contract, and, therefore, repels the bar growing out of a foreign jurisdiction, our statute of limitations pleaded in bar. If the act did not operate on the contract, but merely suspended the remedy, it would be matter of abatement, not bar; because bar goes to the right, not to the remedy; and the statute presumes payment made: therefore, the judgment is in chief, and exhaust the debt, which becomes, as it were, dead. If the defendant meant to avail himself of our limitation act, he should have stated that the notes were made with a reference to our laws, or at least, should have gone on to set forth his own residence for six years last past. The court will refer to the pleadings, and see that they show the lex loci contractus to have attached on the contract; and if the ^residence of the defendant would af- [*409] feet the question^ that circumstance should have been specially set forth to exonerate him from the operation of the laws of Connecticut. In the case of Phelps, the court guarded against the conclusion that might be drawn against hx loci contractus; and the courts of Connecticut have allowed the endorsee of a Hew York note to prosecute in his own name, giving thereby a remedy according to the hx loci, which would have been devised by the lex fori. Let us, for one monent, advert to the consequences of refusing to adopt the. principles for which we contend. The laws of many states place simple contract debts on very different footings: one fifth of the money lent out may be advanced on securities like those on which the present action is grounded. These, after six years, are here presumed to be paid; suppose the maker of anote removes to Connecticut, it will be in vain that he will say, by the laws of New York the debt is barred ; the creditor will proceed and recover, when, in the country where the whole transaction took place, he could never get a shilling. If this rule is to prevail, a creditor has only to watch his passing debtor, arrest him in transitu, and attain payment long after every hope was, by law, and the implied basis of the contract, totally gone. The court, therefore, will be cautious in making a decision, which, by rejecting the laws of a foreign state, in expounding the terms of a contract made •there, becomes a necessary precedent to that state, in regulating the j ustice it is to measure out to the people of New York, which will, out of the limits of New York, create a •seventeen, instead of a six years’ limitation. One contract may, by this means, have a dozen different interpretations: a debt is contracted in New Hampshire; the debtor comes here, and a six years’ quiescence discharges him; he goes to Connecticut, and the debt revives; according as the limitation is long or short, he by his own act, settles the period of his creditor’s demand. It is impossible to deny him this power, if the intention of the parties to the contract, and their resulting duties, arising from a reference to the laws of the country where that contract was made, are to be departed from: for, instead of placing the agreement [*410] *on those resulting duties, and the basis contemplated by the parties, it leaves that, and the duties to which they bind themselves, to the sport and control of the most contingent and capricious events; to the debtor’s locomotive will; to the laws of any and every- state or kingdom in which he may from time to time erect,, from among all the nations of the earth, to take up his residence. Instead of one plain and uniform rule of construction, what an endless and perplexed confusion is suggested ? ' A suggestion which fixes nothing, but unsettles every thing; which renders every judgment insecure, and all suits every thin g but final. Such must be the consequence, though it may be attempted to show the contrary by refined distinctions between the remedy and the contract.
    There is another point of view in which this case may be presented. Among the nations of Europe, a principle of comity has introduced a respect for each other’s laws and constitutions. Between the individual states which compose the union it is submitted, whether there is not a far more cogent reason to respect; even as a bond to preserve the federal government.- There is a part of the constitution by which it is created, that ordains, “ Ho state shall pass any law impairing the obligation of contracts.’-' Does not this impose on the court an additional obligation to respect the laws of a sister state, in the exposition of a contract made there, more than what arises from the mere comity of nations? If the court will apply a principle drawn from the laws of their own state,- contrary to those of Connecticut, and not contemplated by the parties to the contract when it was made, do they not impair the force of obligations? Besides, under this' construction, full faith cannot be given to the judical claims of the citizens of different states. This is mentioned merely as a feature in the constitution, to show with how much circumspection the court ought to proceed. Suppose the case had arisen in a court of the United States, that a Connecticut creditor, on a contract made there, had sued a Hew York debtor, can it be supposed that there would have been the hesitation of a moment in adopting the lex loci contractus, the laws of Connecticut? *It is submitted whether an [*411] act of this state, which should abridge the period given by a foreign contract to a creditor, within which he should not be obliged to demand his debt; which should deny him the right to have recourse to his contract for any part of the time which was allowed by the laws of the state where it was made, it is submitted, I say, whether such an act would not, under the constitution, in the extensive sense of the terms, impair the obligation of the contract.

      Mnott, in reply.
    An objection has been raised against the force of our plea of the statute of limitations, from a clause, or part of a clause in the constitution of the general government; that no act shall be passed to impair the obligations of contracts. From the use made of this passage, it will follow that all statutes of limitation must invariably remain as they nów are, and that no state can ever lengthen or shorten the period; because that would be to impair the rights of others, in existing obligations. The meaning of the words are, that no state shall pass laws tending to impair- the validity of contracts made in other states. The argument on the part of the plaintiff seems to suppose, that if the statute be allowed, the debt cannot be recovered. Hot so ; the contract remains as it was ; all that is said by us is, that when attempted to be enforced against our laws, they interpose; but if it be carried back to Connecticut, then our statute, or a judgment under it, is of no avail. The security was taken, subject to any variations the state in which it was given might make; and also to such as any other might adopt, where it should be put in suit. A fter the defendant has resided six years in this state, the statute attaches wherever the contract was made. For the words of the act are direct and positive. “ Ho action shall be commenced,” &c. without reference to the citizens of this or any other state. Under the letter and spirit of the act, the suit ought to be brought within six years, or the plaintiff should show himself within the proviso. If. the legislature choose to pass a law, the court cannot say they hava no right to do so; and it is to be observed, that this [*412] statute is only a continuance of a'*former act. Allowing the defence, does not deny the contract; on the contrary it admits but avoids. We say, you have brought your suit here, and all that you can claim is the benefit of those laws to which you choose to resort.

        Ruggles v. Keeler, 3 Johns. Rep. 264. S. P. An'd though the defendant never has been within the state, the saving contbutes till he is.

         By the old cases, a promise to pay was déemed necessary to take a debt beyond the period of limitation, out of the effect of the statute; a mere acknowledgment of the debt was not held sufficient, Andrews v. Brown et Ux., Prec, in Cha. 386. Deane v. Crane, 6 Mod. 309. Dickson v. Thompson, 2 Show. 126. Bland v. Haselrig, 2 Vent. 152, being as was then said, only evidence of a promise. Heyling v. Hastings, 5 Mod. 426. This, however, is now overruled. From a review of the later decisions, the following rule may, perhaps, be laid down as their result. “Any words, though spoken after action brought, which show that the debt has not been fully and bona fide paid, is such an acknowledgment of its being due, as will rebut, the presumptive bar arising from the statute of limitations." Yea v. Fouraker, Bull. N. P. 2 Burr. 1099, a note of the same case. Trueman v. Fenton, Cowp. 544. Lloyd v. Maund, 2 D. & E. 760. Bailie v. Lord Inchiquin, 1 Esp. Rep. 435. Peters v. Brown, 4 Esp. Rep. 46. Lawrence v. Worrall, Peake’s Cas. 93. Bryan r. Horseman, 5 Esp. Rep. 81. S. C. 4 East, 590
        Study v. Champlin, 4 Johns. Rep. 461, though in an affidavit for leave to plead the statute to the action. Rucker v. Hannay, 4 East. 604. The promise to pay is a conclusion of law, for which the debt so acknowledged to be unpaid is a sufficient consideration. On this ground it has been ruled, that although the debtor, in the same breath in which he has confessed the debt to be due, add that ho is discharged by the statute, Clarke v. Bradshaw & Coglan, 3 Esp. Rep. 155, or state a part to be paid, Bryan v. Horseman, ubi sup., the statute does not apply; because, against conclusions of the law, there can be no opposition. But as the promise of payment is a mere conclusion by implication of law, though it cannot be contradicted, it may be qualified in any manner not inconsistent with the legal inference. Therefore, notwithstanding such payment would, by intendment of law, be due immediately and absolutely, as, expressvm facit cessare taciturn, the debtor may annex a condition to his promise, and charge the plaintiff with it, Heyling v. Hastings, 1 Salk. 29, or bind himself only when able. Davies v. Smith, 4 Esp. Rep. 36. Cole v. Saxby, 3 Esp. Rep. 159. It seems, that any mode of payment different from that appointed by the law, as in goods, would be conditional; Bush v. Barnard, 8 Johns. Rep. 407. in which case the onus oi proving the condition performed, and of tendering himself ready to receive, where the payment is otherwise than in money, lies on the plaintiff; though it is enough for him, as to ability to pay, to show it from the defendant’s ostensible circumstances, and appearance in the world. When the debt is denied, as by saying, “ I have no recollection of the debt, and rely on the statute,’ Bryan v. Horseman, supra, or “ I have paid the bill and taken a receipt, and will send a copy,” though none be sent, Birk, v. Guy, 4 Esp. Rep. 184, the statute is a bar. So, where the defendant refers his croditoi to another for his determination and ability. Bicknell v. Keppel, 1 N. R. 20. The acknowledgment, to take a case out of the statute, need not be by the party himself; if by an agent, or servant, usually employed in the transaction of the defendant’s affairs, it is sufficient. Pálethorp v. Furnish, 2 Esp. Rep. 511, (n). Where the interest is joint, the act of one is the act of all; therefore, an acknowledgment by one of several makers of a joint and several promissory note, is obligatory on all. Whitcomb v. Whiting, Doug. 652. So, after the dissolution of a partnership, an acknowledgment by a partner of an account made out by him, will set up the debt against the operation of the statute. Smith v. Ludlow, 6 Johns. Rop. 261. Apy act admitting the debt, is equivalent to an acknowledgment. A credit given, or item charged, by a defendant, within six years, will, where there are mutual accounts between him and the plaintiff, take the whole of the demand against himself out oí the statute. Catling v. Skoulding, 6 D. & B. 189. Cogswell, v. Dolliver, 2 Mass. Rep. 211. So a partnership account made out by a partner, after a dissolution of the firm, debiting the concern, Smith v. Ludlow, ubi sup., or writing a letter stating a balance from the former partnership, Wood v. Braddick, 1 Taunt. 104, or a payment of "a dividend hy the estate of a joint debtor, Jackson v. Faribank, 2 H. Bl. 340, revives the debt against all Where the action is against several joint debtors, and evidence of an acknowledgment by one only, the verdict ought to be general, which will cure the defect in Bland v. Haselrig, 2 Vent. 151. What shall amount to an acknowledgment lias been left to a jury; Lloyd v. Maund, 2 D. & E. 760, yet, in a late case, the court determined on the effect of the words. Bichnell v. Keppél, ubi sup. If¡ as Mr. Serjeant Williams, in his note to Hodsden v. Harridge, 2 Saund. 64, , says, “ it might, perhaps, have been as well if the letter of the statute had been strictly adhered to;” and, if that statute be, as is observed in Green v. Kevitt, 2 Salk. 421, 422, “ a very beneficial law on which the security of all men depends, and, therefore, to be favored,” it might possibly he more for the interest of the community at large, and more conducive to the certainty of the law, that, the words being found, their legal operation should be declared by the bench, rather than, by a deleterious complaisance, oe given over to jury determination. In equity, an advertisement that all persons having any debts owing to them from the advertiser, shall be paid at a certain time and place, does away the limitation. Andrews v. Brown, 2 Eq. Cas. Abr. 305. S. C. Prec, in Chan. 386. So a devise to pay debts; Lacon v. Briggs, 3 Atk. 107. Gofton v. Mill, 2 Vern. 141. Anon. 1 Salk. 154, yet, not without some doubt and disapprobation. Blakeney v. Earl of Stafford, 2 P. Wms. 374. Oughterloney v. Earl Powis, Amb, 231.

         This case has been doubted, and it was observed that a very learned judge (Heath) was opposed to the determination. Per Lord Ellenborougb, in Imlay v. Ellsfen, 2 East, 455. And it has been ruled, contra, in the case of Smith v. Spinolla, 2 Johns. Rep. 198, where a foreigner was held to bail on a contract made in his own country, by the laws of which his person waa privileged from arrest. But where the laws of a foreign country had suspended all light of proceeding on certain contracts, antecedently made, it was held by the circuit court for Pennsylvania district, that a suit could not be maintained upon it during such suspension, and the defendant, therefore, discharged on common bail. Conframp v. Bunel, 4 Dall. 419.

   Lewis, Ch. J.,

delivered the opinion of the court. This is an action of assumpsit on two promissory notes made by the defendant to the plaintiff.

The question arising on the pleadings is, shall the lex loci contractus govern, or shall it not ?

It is a well settled rule, that contracts, with a few exceptions, are to be construed according to the laws of that country, in reference to which they are made. But it is equally well settled, that the remedy on them must be prosecuted according to the laws of that country in which the remedy is sought. In the case of Duplein v De Eoven, the. cause of action arose in France; it was on a judgment obtained in that country. The defendant pleaded the statute of limitations, and held a good bar to the action.

In Lodge v. Phelps, decided in October term, 1799, it was held that though promissory notes, made in Connecticut, were not thére negotiable, they might be negotiated here, and a suit maintained on them in the name of the endorsee. For that the principle of the lex loci shall not affect the form of action, but shall have reference only to the nature and construction of the contract, and its legal effect; not to the mode of enforcing it.

In a much earlier case, viz. that of Page and Cable, decided in this court, in April term, 1795, the precise question now before us came under consideration. It was an action of assumpsit, on a promissory note made in Connecticut, by George Cable, to Jonathan Cable the defendant, and by him endorsed to David Page, the plaintiff. *The whole transaction took place in Connecticut. [*413] The plaintiff declared, first, under our statute, as endorsee ; secondly, on the endorsement as a speci al agreement; setting forth the contract as originating in Connecticut, and the defendant as guarantying the payment by George Cable, and on his default engaging to pay for him.

The defendant pleaded the statute of limitations of this state, and the plaintiff demurred, alleging for cause, that no such statute existed in Connecticut, where the cause of action arose.

The court said; that the defendant having elected to prosecute his suit in this state, he must pursue his remedy agreeable to our law's, and that our courts could not dispense with an adherence to the requisites of time, place, and manner of commencing and prosecuting a suit, because the cause of action arose in another state. They conceived, that such adherence by no means impaired the obligation of the contract, and they gave judgment for the defendant. The correctness of those decisions I feel no disposition to controvert, but conceiving the law on the point as settled, we are of opinion judgment must be for the defendant, and with this opinion the Scotch and Dutch laws accord, as will appear from Erskine’s Institutes, vol. 2, 581, 582 ; Kaime’s Equity, vol. 2, 358 ; Huberi PrselectioneS, vol. 2, book 1, tit. 3 ; De Conflicto Legum, sec 7.

Livingston, J.

No other question occurs-on this case than whether we are bound to enforce the limitation enacted' by a statute of our own state, or allow the plaintiff the same time as he would have had before a tribunal in Connecticut ?

*In the exposition of foreign contracts, courts take notice of the laws of the state in which they are made, or manifest injustice would ensue. This is a dictate of common sense, and is become a principle of general law. In suits on contracts made abroad, the parties in their pleadings must observe the forms of the country where the action is depending; but in deciding on the merits, the lex loci will be the rule. This distinction is found in the Roman and French law, and Emerigon speaks of it as adopted by all elementary writers.

“Pour tout ce qui concerne l’ordre judiciare, (or form of action,”) says that author, “on doit suivre l’usage du lieu ou l’on plaide, mais pour ce qui est de la decision du fan, (or the merits,) on doit suivre, en regle generale, lea loix du lien ou le contrat a etc passe ex consuetudine ejus regioriis in qua negotium gestum.”

Another author on the same subject, holds, nearly the same language. In his quae respiciunt litis decisionem, sérvemela est consueiudo loci contractus. At in his quoe respiciunt litis ordinationem, attenditur consuetudo loci ubi causa agitur.

Emerigon also mentions an instance of a suit between two Englishmen in France in which the plaintiff insisted on proving by witnesses a paroi contract for a loan exceeding one hundred livres. The defendant pleaded an ordinance, resembling in some respects our “ Act for the prevention of frauds,” which required contracts of that amount tó be in writing, and no other proof was to be received of it but the instrument itself. The parliament -of Paris, however determined, that this being a valid contract in England, when it was made, the ordinance did not apply, t,.id the plaintiff recovered. “II fut juge, (says the autnor who reports this decision,) par le parlement de Paris, que l’crdonnance n’avait point lieu, d’autant qu’ elle va ad litis decú sionem” or to the gist of the action. Traite des Assurances, c. 4, s. 8.

On. a point of general law, where w& have no rule to the contrary, I cannot well err in conforming to one which we find adopted by a foreign tribunal, heretofore among *the most distinguished in Europe, for the [*415] purity and wisdom of its decimons; a necessary consequence of the great learning, integrity, and independence of its judges. But ¡he same rule, I conceive, prevails here. A note bearing ?. yearly interest of more than 7 per cent, if made abroad and lawful there, may be recovered here, notwithstanding our statute against usury. I see no reason why the same respect should not be paid to the limitation acts of another state. Our statute against usury is quite as imperative in avoiding the security, as that which prescribes the time after which a suit shall not be brought; yet courts have invented, or sanctioned, several .exceptions, not within its provisions, to prevent a failure .of justice. Thus, an acknowledgment of the debt has defeated its operation, or arrested its course. Why, then, not regard an exception created by the parties themselves, which must be presumed to be the case whenever they contract, with a view to a different limitation ? ISTo violence is done to our law, by permitting .them to establish for themselves, a rule different from that which would take place in case of their silence. If the defendant had agreed in writing not to avail himself of the statute of limitations of this state, if the suit were commenced in seventeen years, a doubt can hardly be entertained of our giving effect to such an agreement. I perceive but little if any difference between a written contract of this kind, and a case in which the defendant must be presumed to have had in his eye, the laws of his own state, and, therefore, have virtually agreed to pay these notes, if sued within that period. To ■ leave his state, therefore, prior to that time, and then set up a defence in violation of his own engagement, and the understanding of the plaintiff, is an injustice which ought not to be suffered, if. without a breach of duty, we can prevent it. It may be said that if a party becomes a suitor with us, he must be bound by our laws. This is true, as it respects the form of action, or mode of obtaining the remedy. Courts will, and ought to adhere to their own forms, but in deciding on the merits of the demand, or defence, they do not derogate from their dignity, [*416] by enforcing the laws of the state where *the contract originated. The present defence is a perpetual bar to the action, and, therefore, involves in it the merits, and not a mere question of form. If so, the laws of Connecticut should be our guide, and not those of our own state. In foro consdentice, the plaintiff’s case is a clear one. The defendant, by his demurrer, admits, that if he had not come to this state, the plaintiff might and ought to have recovered. It would be matter of regret, if we were compelled to listen to as unjust a defence, considering the real understanding of those parties, as was ever obtruded upon a court of justice. It would not be easy to assign a reason why an obligation incurred in one state should be cancelled by either of the parties flying to another. We are not, in my opinion, under the necessity of establishing a principle or practice which may so easily be abused, and ' must always be followed by great injustice. So long as we are at liberty to expound contracts lege bd, it is our duty to discountenance a defence, which in such country would not be allowed. When the defendant left Connecticut, the plaintiff had a good cause of action against him, which ought not to be defeated by his own act, in coming among us. I think, therefore, that as this defence has nothing to do with the form of action but strikes at the plaintiff’s right to recover at all, we should apply to this case the limitation act of Connecticut, and that as seventeen years have not run since these notes were made, the plaintiff should have judgment.

Judgment for the defendant.

       See Benjamin v. LeGroot, 1 Denio, 157; Bandall v. Willcins, 4 Denio, 577; Fowler v. Bunt, 10 J. R. 464; Lincoln v. Battelle, 6 Wend. 475; Bugglu v. Keeler, 3 <T. R, 263.

         With deference to the bench by whom the decision in this case was pronounced, there does seem great force in the reasoning of the learned judge who dissented from them. If the exposition of a personal contract is to be governed by the law of the country where made, unless entered into with a view to that of another state; if, as we have determined, in Thompson v. Ketcham. 8 Johns. Rep. 189, the time of payment is, by judgment of law, a part of the original contract, why is not the time of prescription, as declared by the law, equally a part of the original contract? If it be so, is it not of the essence of the contract, according to the exposition which the law would give in Connecticut, that a prescription of less than 14 years shall not be set up against a promissory note ? When we make six years a bar, is it not to expound the contract according to our law, and not according to that of the country where the instrument was made? To a foreign bond we cannot plead our statute of usury; because we do not admit of a defence on the merits, which the law of the country where the deed was executed would not allow. The lex fori knows not of any bar to the right, which does not exist by the lex loci contractus. On this very principle we have disallowed, in the case cited above, a. plea of infancy to a note, because not shown to be a good defence where the note was made. Where is the difference between a bar from infancy, a bar under the statute of usury, and a bar under the statute of limitations ? Do they not all go to the action, and not to the form of the action ? The doctrine of t,he lex fori would apply, if on promissory notes the action of covenant were used in Connecticut, and the same form were attempted in a suit in our courts. A late decision has, however, fully adopted the law of the case in the text. It has been ruled that the statute of limitations is a good plea in bar to an action on a judgment in another state. Hubbell v. Cowdry, 5 Johns. Rep. 132. See also Ruggles v. Keeler, 8 Johns. Rep. 263.