JOHNSON, Administrator of JOHNSON, against BEARDSLEE

and others, Heirs and Devisees of BEARDSLEE.

ALBANY, January, 1818.

of

JOHNSON

V.

BEARDSLEE.

The promise one joint

a debt barred by the statute

THIS was an action of assumpsit, to the declaration in which the defendants pleaded non assumpsit, and the statute of limita- debtor to pay tions, and the plaintiff' replied, taking issue on the latter plea. The suit was commenced in August term, 1814, and the parties, without going to trial, made a case for the opinion of the Court, which was submitted without argument.

of instations, is suicicat to take

the case out of the statute. (a) In an action against the heirs

and devisees of a deceased ise by two of the defendants, who

debtor, a prom

In the summer of 1805, the plaintiff's demand was placed in the hands of one Pumpelly, with whom it was liquidated by John Beardslee, the testator, and the balance struck. The testator died in 1806. After his death, and within six years before the commencement of the suit, the demand was presented to two of the defendants, who were also executors of the de- executors, to ceased, who admitted the balance to be due, and promised to pay it.

*Per Curiam. The demand of the plaintiff was liquidated. with John Beardslee, in 1805, and he died in 1806; consequently before the statute of limitations had attached on the debt. Within six years before this suit was brought, two of the defendants, and who were also executors of John Beardslee, admitted the demand, and promised payment.

Whether the new promise revives the old debt, or can be enforced as a new promise upon a valid consideration, is immaterial to be discussed here. On a review of all the cases, (Danforth v. Culver, 11 Johns. Rep. 146.) we were of opinion, that the acknowledgment of the execution of the notes, with an express declaration that the party meant to avail himself of the statute of limitations, was not evidence of a new promise to pay; but we did not intimate, that an acknowledgment of the debt would not have been sufficient, unaccompanied with a protestation against paying it; indeed, there is a current of authorities, that an acknowledgment of the debt is evidence sufficient for the jury to presume a new promise.

Here, however, is not only an acknowledgment of the debt, but an express promise to pay; and it has always been holden, that a debt, barred by the statute, is a sufficient consideration to uphdd a promise. With respect to the other defendants, who have not acknowledged the demand, or promised to pay it, the ackmwledgment of one joint debtor, of the existence of the debt, is sufficient to take the case out of the statute. (Smith v. Lullov, 6 Johns. Rep. 267. 2 H. Bl. 340. Doug. 652.) The Court see no reason why that principle should not apply to the

(a) Vide Dean v. Hewil, 5 Wendell's Rep. 257. Rogers v. Rogers, 3 Ibid. 503 Hammond v. Hunley, 4 Cor. Ren. 498. Clementson v. Williams, 8 Cranch, 72.; but see Bell v. Morris, 1 Peters's Rep. 351.

VOL. XV.

2

9

were also his

pay the debt,

was held suthcient to charge all the defendants.

*

41

It seems, that an acknowledg *ment of the debt, unaccompanied with a protesta

tion against the payment of it,

is

evidence suffi

cient for the jury

presume a new promise.

ALBANY,

case of executors, heirs, and devisees, as well as to every

January, 1818. other case.

COLLINS

V.

RAGREW.

Judgment for the plaintiff.

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In an action under the 2d

*COLLINS against RAGREW.

IN error, on a bill of exceptions, to the Court of Common

section of the Pleas of the county of Ontario.

act to prevent

gaming, (sess.

cover back mo

The plaintiff in error brought an action of debt, in the Court 24. c. 46.1 N. below, against the defendant in error, and declared generally, R. L. 153.) by for money borrowed by the defendant of the plaintiff, and for the losing party against the money had and received by the defendant to the plaintiff's use. winner, to re- The defendant pleaded nil debet; and, at the trial, in May ney lost at play term, 1817, in the Court below, the plaintiff's counsel stated and paid, the that the action was founded on the second section of the act, plaintiff may declare generally, entitled, "An act to prevent excessive and deceitful gaming," in debt for passed the 21st of March, 1801, and offered to prove, that the received, with plaintiff, at one time or sitting, by playing at cards, lost to the out stating his defendant the sum of 170 dollars, and paid the same to him, case specially, or referring and that the plaintiff, within three months thereafter, sued out the statute but a writ of capias ad respondendum, and commenced this action, in the case to recover back the money which he had lost. This evidence an action was objected to, on the part of the defendant, on the ground brought by a that it was inadmissible, under the plaintiff's declaration, which contained no reference to the statute; and the Court, being of this opinion, nonsuited the plaintiff.

money had and

it is otherwise

of

common

former. (a)

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in

The bill of exceptions was submitted without argument.

Per Curiam. This case comes before the Court on a writ of error to the Common Pleas of Ontario county, founded on a bill of exceptions duly taken. It presents the question, whether, in an action, brought by the losing party, to recover back money lost at gaming, he is bound to declare specially, or may declare generally, under the statute, for money had and received; and the statute would seem too plain and explicit to admit of any doubt, that he may declare generally. This is expressly authorized by the act, (1 N. R. L. 153.) (b) The case of Cole v. Smith (4 Johns. Rep. 193.) does not apply. There the action was by a common informer, the *losing party not having brought his suit within the time limited by the act. In such case, the act does not give any form of declaring, and it was held, that he must state the special matter upon which his cause of action was founded. But it is almost necessarily to be inferred, from what is said by the Court, that a general count would be good, when the suit was by the losing party The

judgment must be reversed, and a venire de novo issued, returnable in the Common Pleas of Ontario county.

Judgment reversed.

Goodrich and DE FOREST against GORDON. (a)

The ransom

a lawful con

an

action may be maintained in

THIS was an action of assumpsit, to recover the amount of a of a vessel and bill of exchange drawn by William Napier upon the defendant, cargo captured in favor of James Stewart, and by him endorsed to the plaintiffs. by an end my is The cause was tried before his honor, the chief justice, at the tract, ari New-York sittings, in April, 1816. The defendant, jointly with certain other persons, was owner our Courts to of the sloop Hope, and cargo, which, in December, 1813, was money agreed sent on a voyage from New-York to Savannah; and the follow- to be paid to ing letter of instructions, dated December 6th, 1813, was deliv- the captor on ered by the defendant to Napier, the master of the sloop.

recover

the

such ransom. (b) Nor is it unlawful, after the

capture, to re

to protect the

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Where a per

authorizes an

to honor the bill,

"Sir,-The sloop Hope, now under your command, being ceive a passport ready for sea, you will proceed to the Hook, and if no cruisers from the captor. are off, you will take advantage of the first good opportunity, vessel from anand proceed to sea, and make every despatch *for Savannah. other capture. I would recommend you to get a good offing, say without the gulf stream; then keep southwardly, until you get St. Catharine's son, by writing, to bear west; then make the best of your way into port. other to draw a Should you touch at the southward of Savannah, you will be bill of exchange, able to get information, and, if necessary, you can take an in- and stipulates land passage. Your vessel is addressed to my brother, George and a bill is af Gordon, under whose instructions you will place the vessel after and taken by a your arrival. Should you unfortunately fall in with, and be third party, on captured by, an English cruiser, you will endeavor to ransom the vessel and cargo, as low as possible, say not to exceed two thousand dollars: your draft on me, or my brother, will be duly honored, or, should they take you to Tybee, you can go ashore, and bring off the specie. I, however, trust you will be more fortunate; but, should it so happen, it will be fulfilled, in good faith. Wishing you a prosperous voyage, I am, &c. Chas W. Gordon."

On her voyage, the sloop was captured by the British frigate Endymion, and was ransomed by the master for the sum of 2,000 dollars, for which amount he drew the following bill on the defendant.

(a) This cause was decided in January term, 1817.

(b) Maisonnaire v. Keating, 2 Gallis, 325.

(c) Vide Greele v. Parker, 5 Wendell's Rep. 414. Coolidge v. Payson, 2 Wheat. Rep. Parker v. Greele, 2 Wendell's Rep. 545. Leonard v. Mason, 1 Ibid. 522. Cook . Satterlee, 6 Cowen, 108. Schimmelpennick v. Bayard, 1 Peters's Rep. 264.

terwardsdrawn,

the faith of the written engagement, this is tan

tamount to an acceptance of

the bill. (c)

GORDON.

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H. B. M. ship Endymion,

At sea, December 21st, 1813.

Ten days after sight of this my second of exchange, first, third, and fourth, of the same tenor and date, not paid, please to pay to James Stewart, Esq. or order, on behalf of the officers and crew of his Britannic Majesty's ship Endymion, the sum of two thousand hard Spanish dollars, in specie, being the amount for which I have ransomed the sloop Hope, and cargo, (this day captured by the said ship,) agreeably to your letter of the 6th instant, and for which I have received the passport of the captain. To be honored, with or without further advice. Your obedient, humble servant,

Wm. Napier, Master of the sloop Hope. Mr. Charles W. Gordon, Merchant, New-York.”

*Napier, at the same time, delivered his letter of instructions to Stewart, and received a passport, as mentioned in the bill. A number of American prisoners were also put on board the sloop, with a quantity of provisions for their support, and she was furnished with a new mainsail and foresail, or jib. During the voyage, the prisoners compelled the master to put into Charleston, where the sloop arrived, and the cargo was unladen, and came into the hands of the consignee. The bill and letter of instructions were received by the plaintiffs, and the amount, on the faith of the letter, was credited to the remitter, with whom the plaintiffs had had previous dealings, but whether this was Stewart or some other person, did not clearly appear. The defendant had received from the other part owners of the vessel, 1,000 dollars, as their proportion of the ransom money.

A verdict was found for the plaintiffs, subject to the opinion of the Court, on a case containing the facts above stated.

Ely, for the plaintiffs, contended, 1. That the ransom was a valid contract, under the law of nations. (2 Azuni, 313. 2 Emerig. 464. ch. 12. s. 21. Valin, 138. art. 66. Cornu v. Blackburne, Doug. 641. Yates v. Hall, 1 Term Rep. 73.) Such contracts are highly beneficial in mitigating the evils of war. They ought to be fulfilled, on principles of common honesty, and for the honor of nations. Si quid singuli, temporibus adducti, hosti promiserint, est in eo fides conservanda. The Courts of no nation have refused to give effect to them, unless prohibited by some statute or ordinance founded on principles of state policy. Thus, in England, by the statute of 22 Geo. III. ch. 25, contracts for the ransom of British ships were declared unlawful, because, possessing a great navy, such contracts diminished the chance of recaptures. But France, Holland, and other maritime powers, regard these contracts as binding under the law of nations. When the subject was brought before Con

gress, in 1813, they refused to pass a law prohibiting ransoms; ALBANY, thus leaving them, in this country, to be governed by the general January, 1818.

law of nations.

*If, then, the ransom was lawful, the passport mentioned in the bill, which was a necessary incident to it, cannot affect its validity. The act of Congress, (13 Cong. sess. 1. ch. 56.) August 2d, 1813, prohibiting the use of British licenses or passes, is to be taken only in reference to licenses to trade. It could never have been intended to apply to the case of a

ransom.

2. There was a valid acceptance of the bill. The bill was for a valuable consideration, and the letter of instructions, which contained the engagement to accept a bill so drawn, was attached to the bill, and passed with it. In M'Evers v. Mason, (10 Johns. Rep. 215.) the Court, after a review of the English authorities, inclined to the opinion, that, where a third person gives credit on the faith of the promise to accept, it would be binding; and the principle of the decision in the case of Weston v. Barker, (12 Johns. Rep. 276.) is strongly in point. There B. accepted certain securities placed in his hands by A., who ordered B. to pay the balance to C.; and it was held that C. might maintain an action against B. on his implied promise. In M'Kim v. Smith & Steene, in the County Court of Baltimore, Nicholson, Ch. J., was clearly of opinion, that such a promise to accept a bill shown to a third person, who gave credit on the faith of it, was binding, and that it made no difference whether the credit was given before or after the bill was drawn. (1 Hall's Law Journal, 488.)

Anthon, contra. 1. A ransom is an illegal contract, at common law; and Lord Kenyon, in Havelock v. Rockwood, (8 Term Rep. 269-277.) considered the ransom acts as remedial laws. All trading with an enemy, during war, without the license of government, is unlawful. (Potts v. Bell, 8 Term Rep. 548.) Contracts of ransom have merely been tolerated by certain nations. They are clearly against the sound policy of all maritime powers, because they deprive their cruisers of the chance of recapture. Again; this contract is within the scope and meaning, if not within the letter, of the act of Congress (13 Cong. sess. 1. ch. 56.) prohibiting our citizens from using, directly or indirectly, a license, pass, or other instrument, granted by the British government for the protection of any ship, &c.

2. Here was no valid acceptance of the bill. This question came up collaterally in the case of M'Evers v. Mason, and Kent, Ch. J., examined the authorities, but the Court expressed no decided opinion. The arguments, however, of the learned Counsel for the defendant, in that case, may be applied, with great force, to the present. The later decisions in England certainly go to establish the doctrine that a promise to ac

GOODRICH

V.

GORDON.

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