ERROR to the circuit court of the United States for the county of Washington, in the district of Columbia. This was an action on a promissory note drawn by James Moore, the plaintiff in error, in favour of Gilbert Docker, and by him indorsed to the Bank of Columbia. The note was for five hundred dollars, dated April 25th, 1816, and payable sixty days after date. The suit was commenced on the 14th of July 1825. It was originally instituted under the provisions of the charter granted to the Bank of Columbia, by filing a copy of the note in the office of the clerk of the circuit court for the district of Columbia, and an order to the clerk from the president of the bank; upon which a writ of fieri facias was issued to the marshal of the district, commanding him to levy on the goods of the drawer of the note, the amount thereof with interest and costs. On the return of the marshal that he had levied on the goods of the defendant; he, the defendant, appeared in court and alleged that he had a good and legal defence to plead in bar to the claim of the plaintiffs in the execution. The case was placed on the docket for trial; and a declaration on the note having been filed, the defendant pleaded the statute of limitations, and issue was joined thereon. A verdict was rendered for the plaintiffs, and judgment entered by the court.
The opinion of the court was delivered by: On the trial the following bill of exceptions was tendered by the defendant in the circuit court; and, under the special allowance of a writ of error by Mr Chief Justice Marshall, the case came before this court.
The plaintiffs, to support the issue aforesaid on their part, produced and read in evidence to the jury, the note and indorsement in the declaration mentioned, being the only cause of action produced or shown in this cause; which note and indorsement are in these words, to wit:––
Washington City, April 25, 1816.
$500. Sixty days after date I promise to pay Gilbert Docker, or order, five hundred dollars, for value received, negotiable at the Bank of Columbia.
Indorsed–Pay the contents of the within note to the President, Directors and Company of the Bank of Columbia, or order. Value received. Gilbert Docker.
The plaintiffs, in order to prove an acknowledgement of the defendant within three years next before the commencement of this suit, so as to take the case on the said note out of the statute of limitations, produced William A. Rind, who testified that in the summer of 1823 he went into a tavern to read the newspapers, where he saw, in the public room, the defendant and two companions drinking, the defendant appearing to be elevated with what he had drank. After the witness came into the room, and while sitting there looking at the newspapers, he overheard a conversation between the defendant and his two companions, in which they were bantering him about his independent circumstances, and his being so clear of debt or of the banks; when the defendant jumped up and danced about the room, exclaiming, 'Yes, except one damned five hundred in the Bank of Columbia, which I can pay at any time.' No part of this conversation was addressed to the witness, nor did he take any part in it. The witness had been for some time clerk in the Bank of Columbia, in Georgetown, but was then in the prison bounds in the city of Washington; and after his discharge from the prison bounds, immediately returned to the bank in Georgetown; he believes the defendant, at the time of the above conversation, knew him to be a clerk of the Bank of Columbia; and the defendant, at the time he used the expressions above mentioned, turned round and looked at the witness: the witness at the time knew that the note in question was lying over in bank, and knows of no other five hundred dollar note of the defendant in that bank, but what was paid. The plaintiffs further proved, that, upon examination of their books, no other discounted note of the defendant stood charged to the defendant at the time of the said conversation.
Whereupon the counsel for the defendant prayed the court to instruct the jury that the evidence aforesaid did not import such an acknowledgement of the debt in question as was sufficient to take it out of the statute of limitations; which instructions the court refused, and permitted the said evidence to go to the jury as evidence of an acknowledgement to repel the bar of the statute. To which decision the defendant excepts, &c.
The case was argued by Mr. Z. C. Lee and Mr Jones for the plaintiff; and by Mr Lear and Mr Sergeant for the defendants.
For the plaintiff in error it was contended, that the promise upon which the drawer of the note was sought to be made liable, was too vague and indefinite. It was not made with the requisite deliberation, nor to a person capable of receiving it for the benefit of the holders of the note. No agent for the bank was present; nor were the circumstances of the case such as that a serious purpose of reviving an extinguished liability for the note could be inferred.
Nor was the promise such as was sufficient to take the case out of the statute of limitations. Cited, 1 Starkey's Rep. 73; 3 Taunt. Rep. 380; 3 Bingh. 329; 1 Serg. & Rawle, 176; 5 Binney, 530; 11 Johns. 146; 15 Johns. 511; 2 Pickering, 368; 8 Cranch, 72; 11 Wheat. 309, 314; 12 Wheat. 567; 1 Peters, 351, 362.
It was admitted that a clear unequivocal acknowledgement of a debt is sufficient to prevent the operation of the statute; but it must be such as amounts to a new contract. The former liability will dispense with a new consideration; but in all other respects there must be enough to infer a new ...