Clemens v. Wilkinson

• Decision Date: 31 March 1846
• Citation: Clemens v. Wilkinson, 10 Mo. 97 (Mo. 1846)
• Parties: CLEMENS v. WILKINSON
• Court: Missouri Supreme Court

10 Mo. 97

CLEMENS

v.WILKINSON

Supreme Court of Missouri.

March Term, 1846.

ERROR TO ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, for Plaintiff. The act of 1835, Revised Code, p. 396, purports to establish the rule of presumption as to judgments rendered before it took effect. To say that the common law rule still remained, unaffected by the act, is to leave the part of the act relating to past judgments altogether nugatory. This, it will be remembered, is a mere rule of evidence, not a limitation of right, or of remedy, and is not, in the different countries and States in which it is recognized, uniform in the length of time required to raise the presumption, or in the circumstances which will rebut it. The statute was designed to fix a rule which should cover the whole ground, and being fixed, it is the only rule in operation.

GANTT, for Defendant. The record presents but one question, “Is the act of 1835 a repeal of the common law, or is it merely cumulative?” Revised Code, 1835, p. 396. The defendant in error, by her counsel, submits that it is not a repeal of the common law; and that Mr. Spalding decided the question submitted correctly. He refers to the following authorities as elucidating this point: Scidmore v. Smith, 13 Johns. R. 322; Abny v. Haines, 5 Johns. R. 175; Farmers Turnpike Company v. Coventry, 10 Johns. R. 389. The principle is too familiar to need labored reference to authorities.

SCOTT, J.

This was an action originally commenced in the St. Louis Probate Court, by James Clemens against the defendant in error, on a judgment obtained against Wilkinson, in his life-time. The judgment was dated April 25th, 1821. The date of the notice to the executor, defendant in error, of the intention of the plaintiff in error to present his demand for allowance, is May 27, 1842. The testator died in September, 1841. The case was afterwards taken to the Circuit Court; the defense was payment. No evidence was preserved, in consequence of an agreement of the parties that the cause depended on the solution of the following question: Whether the statute of limitations, art. 4, § 1, p. 396, Rev. Code of 1835, annuls the bar created by the lapse of time, and removes the common law presumption of payment thence arising, and renders the lapse of twenty years from the date of that act necessary to raise the presumption of payment, which it is admitted would have attached to this demand but for that statute, or is that act merely cumulative? Judgment was given for the defendant in error.

Some statutes, from their being in affirmative-terms, are called affirmative statutes; others are called negative, because they are penned in negative terms. It is a maxim of law that an affirmative statute does not take away the common law. 2 Int. 200. Thus, in the case of Jackson v. Bradt, 2 Caine, 169, it was held that if a statute without any negative words declare that deeds should have, in evidence, a certain effect, provided particular requisites are complied with, this does not prevent their being used as evidence, though the requisites are not complied with, in the same manner as they might have been before the statute passed. So in Foster's case, 11 Rep. 64, ^(a) it was observed that in many cases the designation of a new person, in a later act of Parliament, should not exclude another person who was authorized to do the same by a precedent act. So it is held that statutes must be construed in reference to the common law. In the case of Smith's Ex'r v. Miller, 14 Wend. 190, the court seem to have...