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fectually established by the passage in England, and in several of the United States, of a further statute providing that no promise to pay an outlawed debt, will save the debt from being cut off by the limitation, unless such promise be in writing signed by the party sought to be charged thereby. This in reality is quite consistent with the old statute; for such a written promise is in fact a new cause of action, and after such a promise has been made, the creditor would be entitled to six years more, in which to bring a suit.
From the preceding remarks, it will be seen that the theory of limitations is, that stale demands will not be enforced by the law either as grounds of actions or of defense to actions; that old claims shall not be litigated, not because they are supposed to have been settled, but simply because they are old.
Pleading the statute of limitations, therefore, is not to be regarded as an unworthy evasion of just debts. It is true that a dishonest debtor may contrive to procure a delay in the commencement of a suit for a sufficieni price, to avail himself of this defense. Such a course may be considered as dishonorable. But where the delay in pressing the claim is the act of the creditor, it is a fair reply of the debtor-you ought to have tested this question before now. You have let it sleep so long, that I am under no moral duty, as well as under no legal obligation, to pay any attention to it now. In fact, in all business communities, this is the one of the conditions of debts and credits. When a man contracts simple debts, he does not contract them forever. He holds himself subject to them for the time, and the creditor must assert himself as such within a reasonable time, or he is fairly to be considered as waiving his original right.
For a creditor to sue his debtor fairly and promptly; this is just. For a creditor to resolve never to sue him, and to leave him to pay in his own time, wholly, or in part, or not at all; this is generous. Many creditors with a vague idea of being generous without letting go what is just, take a middle course which works neither generosity to their debtor, nor justice to themselves. They allow an unsettled claim to lie, and the evidence of the transaction to decay, as a fancied favor to the debtor; while all the time they are ready upon any slight inducement to rake up its remains, and ransack them for a cause of action against him.
The words of the late Judge Story, of the United State Supreme Court, in commenting upon a case under this statue, which came before him, * are so plain and so just upon this point that we quote them.
"I consider the statute of limitation a highly beneficial statute, and entitled, as such, to receive, if not a liberal, at least a reasonable construction, in furtherance of its manifest object. It is a statute of repose; the object of which is, to suppre-s fraudulent and stale claims from spring. ing up at great distances of time, and surprising the parties, or their representatives, when all the proper evidence and vouchers are lost, or the facts have become obscure, from the lapse of time, or the defective memory, or death, or removal of witnesses. The defense, therefore, which it puts forth, is an honorable defense, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters in the only practical manner, such as are ancient and unacknowledged ; and, whatever may have been their original validity, such as are now
* Spring vs. Gray, 5 Mason, 523.
beyond the power of the party to meet, with all the proper vouchers and evidence to repel them. The natural presumption certainly is, that claims which have been long neglected, are unfounded, or at least are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their ignorance, or their over-confidence in regard to transactions which have become dim by age. Yet, I will remember the time when courts of law exercised what I cannot but deem a most unseemly anxiety to suppress the defense; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admission of the debt. Happily, that period has passed away; and judges now confine themselves to the more appropriate duty of construing the statute, rather than devising means to evade its operation."
JOURNAL OF MERCANTILE LAW.
BOTTOMRY ON VESSEL, CARGO, AND FREIGHT. Court of Admiralty, Dublin, (Ireland.) The Bon Accord, of Liverpool. Before Dr. Kelly.
This was a cause of bottomry, promoted by Messrs. Scott & Co., assignees of a bottomry bond effected on this vessel, her cargo and freight, at Malta, for £1,794 16s., with maritime interest and insurance premium. No appearance had been given for the vessel, but the owners of the cargo had filed a defensive allegation, setting up that the bond had been given without sufficient necessity, and that several of the items of the account, for the discharged of which it was given, were not properly the subject of bottomry. Captain Robert Nicolls, master, and George Duncan, mate of the vessel, had intervened in the suit, claiming wages and disbursements in priority to the bond. The rest of the crew had gove before the justices at Cork, under the Merchant Shipping Act, 1854, and the justices had given an order for payment to them, but the vessel being under arrest by the Admiralty Court, that order could not be made effectual. It was arranged, however, between the parties to the suit, that the seamen should (to save expense) be allowed to take a decree in this court for the sum awarded them by the justices.
Dr. Radcliff (with whom was Mr. Lowry) on behalf of Captain Nicolls and the mate, stated their claims for wages, and examined them in support of it. Dr. Townsend appeared on behalf of the bondholders, and Dr. Elrington for the owners of the cargo. Dr. Radcliff stated that the claims of Mr. Nicolls were partly composed of demands for money advanced for the ship's use and for wages to the crew; partly of his own demand for wages. He conceded that the demand for disbursements was prior to that of Dr. Townsend's clients, but argued that it was a charge upon the residue of the funds. The demand for wages was, he contended, prior to every other claim.
Dr. Townsend, in reply, cited a decision of Dr. Lushington's, made during the last week, in the case of the Janet Wilson, reported in Mitchell's Maritime Register.
Dr. Elrington contended that no part of the demands of the master could be a charge upon the cargo.
The court gave its judgment as follows —The hiring and services of both pe. titioners have been well proved, and the priority of the demand of the mate over that of the bottomry bondholder (the original suitor in this cause) not being disputed, this officer is therefore entitled to the decree of the court for the sum
of £28 88. 2d., the amount found to be due to him, together with kettle money and costs. The claim of the master, however, is neither so single an one, nor is it unresisted. lle claims not only his wages, but also for disbursements which were made on the ship’s account during the voyage, at Constantinople, Malta, and Gibraltar, and which in themselves amount to a sum of nearly £200. Counsel on the part of the bondholder, admitting both accounts to have been fairly presented, object to payment of both in priority to their own demands, there being probable reason for conjecturing that the fund from which all are to be paid may be a deficient one. The objection to the priority of the disbursements, the money to pay which was raised on the personal credit of the vessel, and by the master, too, who himself had entered into the transaction of the bottomry bond, was well taken, and could not be overcome; and accordingly, in this, an interventional suit for wages, that claim cannot be entertained. But the claim for wages is resisted on grounds peculiar to the master himself. First, because that he was not entitled under the statute, which alone enabled him to sue in this court, to the same benefits and privileges as seamen. Secondly, because that being personally liable under the bond, he was not entitled to come against a common fund, until after that bond was first discharged. This court, however, when it finds by the words of the statute referred to that “every master shall have the same rights, liens, and remedies for the recovery of his wages, which by the act or by any law or custom any seaman had,” must overrule the former of these objections. He thought the opinion reported to have been expressed by Dr. Lushington last week, in the case of the Janet Wilson, showed that his inclination was to consider the right of the master to his wages in this court was now commensurate with that of the seamen. Neither can this court hold the latter objection a good one, as the remote and iinprobable possibility of the mas. ter being personally sued in a court of cominon law on foot of the bond should Dever afford a sufficient reason for debarring him of his undoubted right in this court, namely, suing for wages due to him for his services on board this ship. These objections, then, fall to the ground. The evidence as to his conduct in regard to the ship's disbursements, showing that he had acted with great intey. rity and ability towards all concerned, and having gone into the account on behalf of the owners, I find no set-off, as far as that evidence goes, can be main. tained against him. The court, therefore, decrees him his wages to the amount claimed-£173 158. 6d., with costs.
GRAIS DEALERS-WRITTEN CONTRACT TO DELIVER GRAIN AT A STIPULATED PRICE
-WAS IT A GAMBLING SPECULATION ?
An action was decided, September, 1857, in the United States Circuit Court, on a written contract, made in April, 1857, whereby defendant agreed to deliver to plaintiff fifteen thousand bushels of corn during the last half of June, at a stipulated price to be paid on delivery, which defendant failed to perform; and plaintiff claimed damages for the failure, corn having advanced largely in price in the meantime. Defendant filed several pleas, setting forth that, at the time of making the contract, he had not the corn, which fact was known to the plaintiff; that, therefore, it was a wager-contract, and void at law. To these pleas the plaintiff demurred, his counsel arguing that the pleas disclosed no such state of facts as, if proved, would warrant a jury in finding it a gambling contract. The counsel for the defendant contended that the fact of selling, deliverable at a future day, when the seller had not the article on band, was sufficient cause to overrule the demurrer, and permit the case to go to the jury, where he could show the fact that, at the time of the making of the contract, no delivery was contemplated by the parties, but only the payment of the difference between the contract and market prices for money from one party to the other at the time specified for delivery. The court gave judginent for plaintiff on the demurrer.
COMMERCIAL CHRONICLE AND REVIEW.
RESUME OF FINANCIAL AFFAIRS — RESUMPTION OF SPECIE PAYMENTS IN NEW YORK AND MOST OF
NEW ENGLAND-REDEMPTION OF COUNTRY MONEY-EFFECTS OF THE RESUMPTION-CONTINUED
One of the most important financial events since the date of our last issue, is the formal resumption of specie payments by the banks of New York, which was resolved upon on the evening of Friday, December 11th, and consummated on the morning of the 12th. As the suspension was settled upon on Tuesday evening, October 13th, and commenced by appointment on the morning of December 141h, it follows that it continued nominally just 59 days. We have noted the resumption as a measure of importance, but in this connection its importance was almost wholly theoretical. Practically, there has been no suspension of specie payments in New York since the first day or two following the excitement in October. All of the banks, as far as we can learn, paid specie on demand for their circulation, and few, if any of them, refused to pay in specie upon any of their obligations. Consequently there was no premium upon coin beyond the cost of packing it in kegs or boxes for export. Silver has been very plenty, and in some cases sold at a discount. Gold in small sums was easily obtained in New York, at from par to fc. premium upon bankable paper, and we know of no considerable purchases, during the whole period, at anything over half of one per cent premium. Outside of New York more difference was paid, because the tendency of specie was toward that city.
The formal resumption of specie payments at New York was almost forced upon the banks by the accumulation of coin. We noticed in our last the fact that the country currency was no longer received by the New York city banks at par, and that the whole accumulation was about eight million dollars, which had been deposited in the Metropolitan Bank, and was represented by certificates of deposit. This sum was put on interest at 6 per cent after the 1st December, and the country banks had therefore every inducement to withdraw it. The total rapidly ran down, so that the banks held, at the date of resumption, only about four millions, and it was no longer convenient or desirable as a medium of settlement between them. Meanwhile the specie in the city banks increased to twentysix millions, (an unprecedented total,) and there was really no reason why the banks, for themselves, should hesitate about a resumption.
The argument used by those who opposed a formal resolution to this effect, was, that the suspension was only nominal, and therefore inflicted no practical injury, while it would enable the banks to protect themselves and their customers against any sudden change for the worst abroad, or any unlooked-for disaster nearer home. Those who wished to reserve this defense against any contingency, gave way, bowever, and the resumption was unanimous throughout the city on Saturday, December 12th. It was immediately followed by a similar movement throughout the State, and the greater part of New England. The Rhode Island
banks delayed their action, although a large portion were urgently desirous of following the good example, and Philadelphia, and some other cities further south, continued the suspension.
The general movement of the country is still toward liquidation, and there has been therefore no general revival of trade. Contraction, collection, and settlement, are everywhere the order of the day. This work of course goes on slowly, as of necessity it must from the large field over which the entanglement extended, and the difficulties in the way of negotiating exchanges and providing the medium of payment. It has borne the most severely upon the country, because the produce was gathered for market at great disadvantage and after many delays, while the money, which was not hoarded, was gleaned from the channels of cir. culation, leaving the interior without the proper facilities for conducting the local trade. Money can only be restored in plenty to the rural districts after the produce has been mostly forwarded to market, and in payment of any surplus which may be due upon such shipments, so that the relief will be longest delayed in the quarters where the pressure was felt latest.
How far the country can be relied upon for payment in full for past or present indebtedness, is a question not easily solved. Those who thought themselves rich with wheat at $2 a bushel, will find their assets miserably shrunken with wheat at 75c. for the same measure. This will be true not only in reference to the actual contents of the granary, but also in connection with every description of property dependent upon the value of agricultural produce. Apart from this necessary depreciation of values, there are many who will take advantage of the notorious difficulties to repudiate their obligations. This is no libel upon human nature, nor is it any new thing under the sun.
Some will yield to the general pressure without any consciousness of wrong doing, who might avoid the disgrace if they only had faith in themselves. As in epidemics, when thousands are dying of disease, many will perish from fright without being touched with the prevailing distemper; so, in times of pecuniary excitement, there are scores who are imbecile through fear, and who fail to meet their engagements because they see others go down and suppose it is their own necessary fate. Beyond these cases, there are others who hide their ability to gratify their covetousness, and are glad of any excuse to repudiate their obliga tions without losing all reputation for honesty or fair dealing.
In our last we argued, at some length, the importance of a national bankrupt law, not for the benefit of debtors, bat for the protection of creditors, and we are much pleased to observe that the President of the United States, in his first annual message, since issued, takes similar grounds, and urges upon Congress the adoption of this measure at its present session. The public are now evidently prepared for such an enactment, and as it is within the powers granted to the National Legis. lature, there is good reason to hope that the proposition will be successful,
We also alluded in our last to the small pote currency in connection with Copgressional legislation. The message touches upon the same topic, and adopts substantially the same views, but so many difficulties environ any uniformity of action in this matter among the several States, that we have little hope of any immediate change, however desirable.
On the whole, there has been a general lightening up of the financial horizon in this country. The contraction in the issue of business obligations has created a