Montgomery Bell, Plaintiff In Error v. James Morrison, Anthony Butler, and Jonathan Taylor, Defendants In Error

• Decision Date: 01 January 1828
• Citation: 7 L.Ed. 174,26 U.S. 351,1 Pet. 351
• Parties: MONTGOMERY BELL, PLAINTIFF IN ERROR, v. JAMES MORRISON, ANTHONY BUTLER, AND JONATHAN TAYLOR, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

26 U.S. 351

1 Pet. 351

7 L.Ed. 174

MONTGOMERY BELL, PLAINTIFF IN ERROR, v. JAMES MORRISON, ANTHONY BUTLER, AND JONATHAN TAYLOR,

DEFENDANTS IN ERROR.

January Term, 1828

[Syllabus intentionally omitted] THIS was a writ of error to the seventh Circuit Court of the United States, for the district of Kentucky, sued out by the plaintiff below; and the case was presented for the consideration of this Court, upon a bill of exceptions, taken by the plaintiff in error.

An action of assumpsit was instituted against Charles Wilkins, Jonathan Taylor, James Morrison, Anthony Butler, and Isaac White, in 1823. The defendants, on the first of March 1810, by articles of agreement, under their respective hands and seals, entered into a partnership, for the purpose of manufacturing and vending salt, at Saline, near the Wabash, in the then Illinois Territory, under the firm of Jonathan Taylor & Co.; and the object of this suit is the recovery of about twenty thousand dollars, claimed to be due on the sale and delivery of castings, to that value or amount. The evidence of the sale and delivery of the articles, and of their value, was complete; and the questions which were presented to the Court, by the record, were:—1st. Upon the decision of the Circuit Court, against the admission of a deposition, which had been intended to be taken in conformity with the provisions of the Act of Congress of the 24th September 1789, ch. 20, and in reference to the taking of which were was in all respects a compliance with the directions of the Act, with the exception, that the deposition was not certified to have been reduced to writing by the magistrate, or by the deponent in his presence; and,

2d. On the exclusion of certain testimony, and the validity of the plea of the statute of limitations, upon which plea the decision of the Court having been in favour of the defendants, a verdict and judgment was rendered for them.

All the facts considered as proved in the case, and also the written and documentary testimony essential to a full understanding of the case are stated at length in the opinion of the Court, delivered by Mr. Justice Story.

The case, for the plaintiff in error, was presented to the Court by Mr. Rowan, and by Mr. Benton; and by Mr. Jones, for the defendants.

For the plaintiff in error, it was stated:——

1st. The Court erred in excluding the evidence offered by the plaintiff, to take the case out of the statute of limitations.

2d. In rejecting the deposition of John Mockbee.

1. The conversation, proved by the deposition of Patterson Baine, took place in 1818-1819, and the writ was issued in August 1820; and the language of Morrison, one of the defendants, is sufficient to repel the plea of the statute. He expressed his willingness 'to settle with the plaintiff,' but the books and papers of the concern were in the hands of Taylor. He said 'he was anxious that the plaintiff's account should be settled.' 'I know we are owing you.' 'I am getting old, and I wish to have the business settled.' He proposed to give the plaintiff $7,000, in satisfaction of the claim.

These acknowledgments are sufficient, on authority, to maintain this suit. The letters of Butler contain equivalent and similar expressions. The letter of Morrison has the same operation. 2 Camp. 11. 5 Binn. 573, 580, 582. 4 Johns. 468. 2 T. R. 660. Lloyd vs. Maund, 2 Taunt. 760, in which a new trial was granted, because the Judge at Nisi Prius had not left to the jury for their construction, a letter which contained an admission that something was due. All the cases go to establish the principle that where an acknowledgment is proved, the jury are the proper judges of its effect. The Court can only say, whether it is relevant to the subject matter.

Where several are liable, the acknowledgment of one will take the demand out of the statute, 6 John. 267. 2 Bay, 533. 2 H. B. 340. 2 Doug. 652. 3 Camp. 32. 2 Camp. 11.

Every partnership is, quasi, a corporation, and every individual in the firm a corporator, they having no power, by dissolution of the same, to affect the rights of creditors, and they continue a corporation until all their debts are paid. Every partner may maintain and give validity to the contract which was entered into during the partnerships. He does not make a new contract by a promise after the dissolution of the firm; but only continues the old one. The whole act, when one acts. There is no agency of one partner for another, but for the whole, where one acts. Secondly. The deposition of John Mockbee was taken according to all the essential requisites of the Act of Congress. It is certified to have been taken in the presence of the magistrate, 'and that it is in the deponent's hand writing;' and these circumstances show a conformity with the statute.

Mr. Jones, for the defendants in error.

The question in this case, is whether the statute of limitations shall be restored to its original meaning, or be reduced, as it formerly was in England, to a nullity. The cases erroneously suppose that the statute proceeds on a presumption of a debt. The rule should be, that the acknowledgment should be such as, in itself, will support the claim, and thus render any evidence of the original debt unnecessary. The argument that the statute only prevents the remedy, is incorrect; if there is no remedy there is no debt.

The evidence does not show an acknowledgment of a debt, but expressions of a wish to buy peace; and if propositions were made for a settlement, they having been rejected, the transactions of the parties are still open. The original doctrine in England was, that there should be a new consideration as well as an acknowledgment, but the more recent cases require an acknowledgment and an express promise to pay, Clementson vs. Williams, 8 Cranch, 72. Wetzell vs. Buzzard, 11 Wheat. 309.

There are decisions upon this point in the state of Kentucky, whose statute is now to be construed. Hardin's Rep. 302. Harrison vs. Hanley, 1 Bibb, 445. 2 Bibb, 285. 3 Bibb, 271.

2. Whether the acknowledgment of a retired partner will bind the other partners? The acts of a partner, bind the partnership during its continuance, because each partner is the agent of the firm; Whitcomb and Whiting, 2 Doug. 625. After dissolution, payment to the out going partner is invalid. Montague on Partnerships, 127. The acknowledgment of a partner to take a case out of the statute, is a new contract, and therefore cannot operate, if made after dissolution, Montague, on Part. 125, 127. Watson on Part. 448. Jackson vs. Fairbanks, 2 H. Black. 340. 1 Barn. & Ald. 463. Norris Peake's Evidence, 423. Wood vs. Braddick, 1 Taunton, 104.

Secondly. The deposition of John Mockbee was properly rejected. Depositions taken under the Act of Congress are ex parte, and the form established by law must be strictly complied with. The Act requires that the deposition shall be written by the Judge or Justice taking it, or written by the witness in his presence. This cannot be inferred, and must be stated in the certificate.

Mr. Justice STORY delivered the opinion of the Court.

This cause comes before us, upon a writ of error to the Circuit Court of the District of Kentucky. The original action was brought by the plaintiffs in error, against the defendants, on the 16th of August 1820; to recover the value of certain iron castings, sold and delivered to them by the plaintiff. The defendants pleaded non assumpserunt, and non assumpserunt, within five years; (the latter being the time prescribed by the Kentucky statute of limitations, in cases of this nature;) upon which pleas, the parties were at issue; and at the trial, a verdict was returned by the jury for the defendants; upon which, judgment passed in their favour. A bill of exceptions was taken to certain points, ruled by the Circuit Court at the trial; and the validity of these exceptions, has constituted the ground of the argument for the reversal, which has been insisted on in this Court.

The first objection urged, is the exclusion of the deposition of a Mr. Mockbee, which was offered by the plaintiff as testimony in the cause. The reason assigned for the exclusion, is, that there was no proof by the certificate of the magistrate, or otherwise, that the deposition was reduced to writing, in the presence of the magistrate. This is a point altogether dependant upon the construction of the Act of Congress of the 4th of September 1789, ch. 20; under the authority of which the deposition purports to be taken. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and, therefore, it is necessary to establish, that all the requisites of the law have been complied with, before such testimony is admissible. The Act of Congress provides, 'That every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed, to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing; which shall be done only by the magistrate, taking the deposition, or by the deponent in his presence. And the deposition, so taken, shall be retained by such magistrate, until he deliver the same with his own hand into the Court for which they are taken; or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice, if any was given to the adverse party, be by him the said magistrate, sealed up, and directed to such Court; and remain under his seal, until opened in Court.'

Without doubt, the certificate of the magistrate is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury; if all the necessary facts are there sufficiently disclosed. It is not denied, that the reducing of the deposition to writing, in the presence of the magistrate, is a fact made material by the statute, and that proof of it, is a necessary...