Adger v. Alston
ERROR to the Circuit Court for the District of Louisiana; the case being thus:
On the 29th of February, 1868, Alston, a citizen of South Carolina, brought an action in the court below against W. E. Adger, administrator of John Adger, the latter in his lifetime and the former at the commencement of the action citizens of Louisiana; the foundation of the action being a penal bond conditioned for the payment of $4500, with interest, on the 1st of January, 1858. Anticipating, probably, a defence of what is called in Louisiana 'prescription' (a defence equivalent to that known in other States as that of the 'statute of limitations'), the petition set forth that the interest had been paid to the 1st of January, 1863; all which it was alleged 'will appear by the said bond annexed for reference and made part of the petition.' An instrument which purported to be the bond was accordingly annexed to the petition; and on it were various indorsements in the handwriting of Alston, or in what purported to be so, and signed by him, acknowledging payment of interest at various times 'up to January 1st, 1863.'
The law of prescription of the State of Louisiana was relied on as a defence, and this defence presented the only matter assigned for error in this court.
The defendant pleaded and relied on the five years' prescription in his answer, and also filed what in the practice of that State is called the exception of the five years' prescription. This exception according to that practice was tried by the court without a jury, and on this trial the court ruled, as is shown by a bill of exceptions, 'that the whole of the time of the late rebellion or civil war, viz., from the 26th of January, 1861, when the ordinance of secession was passed by the convention in Louisiana, to the 20th of August, 1866, when the proclamation of the President was made, declaring the restoration of peace between the States, should be deducted from and not counted as the time during which prescription ran, and, therefore, there was not a period of five years between the claim as made in the plaintiff's petition, to the service of the citation in the suit at bar.'
This court had held, in United States v. Anderson,  previously to the decision in the present case in the Circuit, that as to the time of bringing suits in the Court of Claims under the Captured and Abandoned Property Act, which, by the terms of that act, must be within two years after the close of the war, the proclamation of the President of August 20th, 1866, announcing that peace prevailed all over the United States, which had also been adopted by Congress as the close of the war in regard to certain military services, must, as to those matters, be held to be the date of its termination. No date was fixed for its commencement.
Notwithstanding the ruling already mentioned of the court below, by which the court decided against the plea of prescription, the question of prescription was submitted to the jury on the facts under the defence set up in the answer; and the court admitted on the trial, against the defendant's objection, oral statements of conversations and admissions of the defendant's intestate, tending to show that he had acknowledged the debt as lately as 1863, and also admitted for the same purpose the indorsements on the bond of the payment of interest.
A statute of Louisiana, passed in 1858,  it is here necessary to state, enacts as follows:
'SECTION 2. Hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession, in order to take such debt or liability out of prescription, or to receive (revive) the same after prescription has run or been completed; but in all such cases the acknowledgment or promise to pay shall be proved by written evidence, signed by the party to be charged, or by his specially authorized agent or attorney in fact.'
Judgment having been given for the plaintiff the case was now here on error.
Mr. W. W. Boyce, in support of the judgment, and for the defendant in error:
1. Was the plea of prescription set up made out? It will be admitted by all that the civil war, during which the Federal courts were closed, suspended the running of the prescription or statute of limitations. This is settled by Hanger v. Abbott.
Now, we must assume that the commencement of the war was on the day when the ordinance of secession of Louisiana passed. This was January 26th, 1861. The close of the war was decided by this court in United States v. Anderson to have been August 20th, 1866. In other words, the war in Louisiana lasted five years, six months, and twenty-four days. Then the matter of the prescription of five years stands thus:
Yrs. mos. dys.
From January 1st, 1858, when the bond was due, to January 26th, 1861, when suit, before the war, might
have been brought, is 3 0 26
From August 20th, 1866, when an ability to sue, after the war began, till February 29th, 1868, when
the writ was served, is1 6 9
Whole term, from date when the bond became due to the time when the writ was served, within which suit
could have been brought, 4 7 5
Or, putting the thing in another form—
Yrs. mos. dys.
From January 1st, 1858, when the bond became due, to February 29th, 1868, when the writ was served, was 10 1 29
The war, as above stated, and during which no suit could be, lasted, as above stated, 5 6 24
Leaving as the whole term, when the ability to sue existed, 4 7 5
Unless, therefore, we assume some later date than the actual 'secession' of the State for the commencement of the war, or fix some later date for its ending than what this court fixed in United States v. Anderson, or do both, the court below decided rightly that the plea of five years' prescription was not made out.
2. Did the evidence admitted contravene the statute of 1858?
The 'acknowledgment or promise,' required by the second section of the act of 1858, to be proved by 'written evidence,' can in the nature of things, apply to express acknowledgments or promises alone. It cannot apply to implied ones. Express acknowledgments or promises are spoken words, and can always be put in writing. Implied acknowledgments or promises are not spoken words, but conclusions of law from antecedent facts, and cannot ever be put in writing. What can be in words, the statute requires to be in writing. What cannot from their very nature be in words the statute does not require to be in writing.
This distinction is supported by analogies in the law. For example, the liabilitiy of a guarantor under the statute of frauds is required to be in writing. But where the guarantor is liable on other grounds than his guarantee, the promise need not be in writing. 
So the statute of frauds which requires certain declarations of trust to be proved by writing, exempts trusts arising by implication of law; that is, express trusts must be evidenced by writing; implied trusts not. 
In addition. The policy of the act of 1858 was to guard against recollections of verbal statements or conversations, so difficult to remember precisely, and so easy of perversion. But this policy does not apply to proving a fact like payment. 'The payment of principal or interest,' says Tindall, C. J.,  'stands on a different footing from the making of promises, which are often rash or ill interpreted, while money is not usually paid without deliberation; and payment is an unequivocal act, so little liable to misconstruction as not to be open to the objection of an ordinary acknowledgment. We think payment of money by one of several joint contractors an acknowledgment not within the mischief or the remedy provided by the legislature against the effect of an oral promise.'
The distinction between part payment and a verbal acknowledgment or promise is specially taken by Lord Tenterden, act 9, Geo. IV, c. 14. 
And an admission by a creditor that money has been paid him (on account of the admission being proved, to be made before the prescription or statute begins to run), being an admission against his interest, may be well received as evidence. In the case of a person deceased, the presumption is that they were so made.
Messrs. T. J. Semmes and W. A. Meloy, contra.
Mr. Justice MILLER delivered the opinion of the court.
^1 9 Wallace, 56.
^2 Acts of Louisiana of 1858, No. 208, p. 148.
^3 1 Saunders, 211, note J; Smith on Contracts, § 48, note A, p. 36.
^4 Hill on Trustees, p. 56.
^5 Wyatt v. Hodson, 8 Bingham, 309.
^6 See act in full, Angell on Limitations, Appendix, ch. 20, p. 8. Edition of 1869.
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