Uriah Hayes vs. Walter Morse, 8 Vt. 316

The opinion of the court was delivered by Redfield, J. It is not necessary, perhaps, to go into any discussion of the long vexed question, how far an endorsement of part payment on a note or bond is evidence to go to the jury for the purpose of rebutting the presumption of payment in the one case, or to remove the operation of the statute of limitations in the other. It was once settled in England, [(Searle vs.

Bossington, 2 Strange, 286,) that an endorsement in the hand-writing of the obli-gee or payee, bearing date prior to -the term of the period of the statute of limitations having elapsed, might go to the jury as evidence to rebut presumption of payment, or remove the statute bar. That ease was-very elaborately discussed at nisi print,-, before Ch. J. Pratt, who rejected the evidence., subsequently, in :the King’s Bench and Exchequer Chamber, and finally in the House of Lords, in eaoh of which courts it was held that the testimony was competent to go to the jury.

That decision was acquiesced in until more recently, when Lord Ellenborough, at nisiprius, held that such an endorsement, to'be evidence to go to the jury to rebut presump.tion of payment, or remove the bar of the-statute of limitations, must be accompanied with other evidence tending to show, either that the endorsement was made by the consent of the obligor or maker of the note or bill, or that it was in fact made before the right of action had become barred by lapse of time, and when the payee could have had no motive to make the endorsement with a view to use it as evidence for that purpose.

This rule was adopted in New-York by the supreme court in the case of Roseboom vs. Billington, (7 John. R. 183.) And such continued to be the settled law in Westminster Hall until the. passing of Lord 1 enterden’s Act, requiring the promise to pay a debt barred by lapse of time, in order to avail the plaintiff, to be in writing. This is the 9th Geo. IV. C. 14, and finally put all discssion of that and similar questions at rest. With us the subject is still open to discussion, and must remain one of some uncertainty until the legislature see fit to interfere.

There is perhaps no subject upon which there has been more judicial legislation than that of the limitation of actions. The whole subject of removing the bar by a new promise to pay the debt, or an admission of its existence, is a creature of the creation of courts. The presumption of payment of a bond (in England) from the lapse of twenty years, is of the same character.

But in regard to an endorsement on a written contract, it has always been held that to avail the payee for the purpose of rebutting a presumption of payment, it must be an endorsement of a payment made at the date of the endorsement, or that it can have reference only to the time at which the payment was in fact made. In this case, the endorsement being signed by both parties, no question ;as to its being made before or after; the debt- had become barred by statute, will arise. For being signed by the defendant, if it imported a payment at the time of its date, it must clearly take the case out of the statute.

For part payment of the-debt without qualification is an admission of the balance remaining due, whichris sufficient to remove the bar of the statute of limitations.— Olcott vs. Scales, 3 Vt. R. 177. But this is only a payment‘made at the time the note fell due, and does not import a payment at the date of the endorsement. And this admission was accompanied -with'a claim that the whole had been paid.

The endorsement then taken, either by itself or in connection with the other evidence,-which is competent to qualify or explain a mere admission and not a contract, bad no tendency to show an admission'óf a present subsisting debt, which defendant intended to recognize as a binding obligation, and therefore could not remove the bar created by the statute of limitations. — Clementson vs. Williams, 3 Cond. R. (Peters.) 37 — 8 Cranch, 72.

And the construction contended for by plaintiff would be to revive the ancient absurdity of a constructive repeal of this highly beneficial statute, by declaring any assertion, which one might see fit to make, when interrogated as to the date, a sufficient admission to take the case out of the statute. We are happy to believe that a more recent and more rational construction has redeemed these statutes from much of the uncertainty which for many years hung over them. They are now considered, like any other statute, worthy of the highest consideration, and binding upon courts within their just limits.

They have been very justly denominated “ statutes of repose.” Judgment of the county court is affirmed.