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Squires agt. Brown.

defendant Brown resigned his office of trustee before the first of December, 1856.

The third question above stated, if it was the simple inquiry whether trustees who have acted as such, and have held the corporation before the public as duly constituted, and so invited the confidence of the community, and especially of the plaintiff, can, when proceeded against by the plaintiff as a creditor, deny the incorporation and prove that it was not lawfully organized, might perhaps be answered by the cases which declare that such acts of the trustees create an estoppel in favor of creditors, and so forbid their proving that the corporation was not what it was held out to be by themselves, or that they are not what they have professed themselves to be, trustees of a corporation. (Eaton agt. Aspinwall, 6 Duer R., 176; 19 N. Y. R., 119, and the cases therein referred to; Caryl agt. McElrath, 3 Sand., 126; Mead agt. Keeler, 24 Barb. R., 20; Jones agt. Dana, id., 395.)

But the offer here goes further, and bore directly on the question whether in truth there ever had been any other organization than the National Plate Glass Works, and whether all that was done was not in fact by the managers of that company, in pursuance of an expectation that the organization of the new company would be completed. If in fact the defendants were defrauded into a consent to take part in organizing a new company, but before the new organization was completed they discovered that they had been deceived, and actually abandoned the enterprise before the alleged default in filing a certificate, so that in truth. in January, 1857, there was no such corporation, then there are two answers to the plaintiff's claim.

First. That there never was any such company, and the defendant never did anything to create any belief that the company was organized; and

Second. At the time the alleged default arose, the company had been abandoned and its affairs were in liquidation. We are not satisfied that if the defendants had

Squires agt. Brown.

been permitted to prove all that they offered, they would not have so overcome the proof given by the plaintiff, as to have shown that no estoppel existed.

The allegations in the defendants' answer are quite loose and general, and it might, on a critical examination, be suggested that the answer would not be likely to apprise the plaintiff that the resignation of the defendants, or the facts relied upon, would be shown on the trial; but no objection was made there, nor is it suggested on the argument of the appeal that the answer is not sufficient to let in the proof, if otherwise competent, or rather that it is not sufficiently set up in the answer.

There must be a reversal of the judgment as to the defendant Brown, and a new trial ordered, with costs to abide the event.

And as to the other appellant, Dusenbury, the same defence of resignation applies also to him; and if he is not liable as a trustee of the National Plate Glass Company, by reason of his resignation, or because that organization never was completed, then he is not liable in this action as a trustee of the National Plate Glass Works, in which he was confessedly a trustee, because it is not averred or shown that the Plate Glass Works contracted the debt or are liable to the plaintiff therefor. On the contrary, his judg ment is not against that corporation; and it is not alleged that that corporation did not file reports as required by law. Judgment reversed, and new trial ordered, costs to abide the event of the suit.

Munroe agt. Potter.

SUPREME COURT.

DAVID MUNROE respondent agt. CALEB N. POTTER, impleaded with OBADIAH THORNE, appellant.

It is the business of a party who takes exceptions, to show that the decision is wrong. The court will never grant a new trial where the decision is right upon the whole case, although the reason stated is not the true one on which the decision should have been based, or upon an isolated question which it was not even necessary to consider in order to come to a correct result upon the whole case. Where a surety who is a joint maker of a promissory note with the principal, requests the principal to make a payment of interest on the note, and the principal makes the payment, which is indorsed on the note,

Held, that the act is to be regarded as the acknowledgment of the debt by both parties, and sufficient to take the case out of the statute of limitations. (It seems that the Code does not affect such an acknowledgment, although the case arises under it.)

APPEAL from judgment at special term.

The action is upon a note for $2,000, dated October 20th, 1853, payable on demand, made by the defendants, payable to the plaintiff. The defendant Potter was surety for the defendant Thorne, to whom the plaintiff advanced $2,000, the consideration of the note.

In the fall of 1857, the then last year's interest upon the note remaining unpaid, plaintiff called upon defendant Potter concerning it, and he said he would see Thorne, and the interest should be paid. Potter did go to Thorne and tell him he must pay the interest, and he thereupon paid it and it was indorsed upon the note.

Thorne, prior to October, 1858, made a general assignment to one Talcott, for the benefit of creditors; Potter was paid by Talcott a dividend on a debt owing by Thorne to Potter, about the first of October, 1858. At that time Talcott requested Potter to take to Munroe, the plaintiff, a dividend from Thorne's estate, payable on the note in suit; Potter, after some hesitation, consented to do it. He received from the assignee $202.92, the amount of the div VOL. XXII.

4

Munroe agt. Potter.

idend; and shortly afterwards sent $200 of the amount by his son-in-law, Kidder, to Munroe, with directions to tell him that Talcott sent it to him as a dividend on Thorne's note.

The evidence is conflicting whether Kidder, when he paid the money to Munroe, told him what Potter had directed.

Munroe took the $200, indorsed it on the note October 8th, 1858. Potter testified that within two weeks after this he saw Munroe, and asked him if Kidder handed him the $200, and told him it was not all of the dividend, and offered to pay him the balance, $2.92.

The court directed judgment for the plaintiff, and refused to submit the case to the jury.

The questions in the case are, whether the payment of interest in 1857, by Thorne, and the payment of the $200, under the circumstances, were in law payments by Potter. If not, then the action is barred by the statute of limitations.

SEDGWICK, ANDREWS & KENNEDY, for appellants.

I. To renew a debt barred by the statute of limitations, there must be a promise on the part of the debtor to pay the debt.

Conflicting decisions, as to the character of the evidence to establish a promise, have been made, depending in some degree upon the favor or disfavor with which courts. regarded the statute.

The earlier decisions, after the statute of JAMES I, held that an express promise to pay the debt was requisite, and that an acknowledgment was not sufficient. (Dickson agt. Thompson, 2 Shower R., 126; Andrews agt. Brown, Price Ch. R., 385.)

Afterwards, under the lead of Lord MANSFIELD, the slightest acknowledgment was held to be sufficient evidence of a new promise. (Quantoch agt. England, 5 Burr., 2628.)

Munroe agt. Potter.

Latterly the English and American courts have adopted the more rational construction of the statute, that the acknowledgment, to take the case out of the statute, must be clear, positive and unequivocal. (Bell agt. Morrison, 8 Pet., 351; Angel on Limitations, p. 222.)

Before the Code (1848) in this state, the rule was the same as in England, and it was held that a new promise might be inferred:

1st. From an unconditional acknowledgment by the debtor of a subsisting debt.

2d. From a part payment by the debtor of the claim against him.

The point necessary to be established in either case, was a promise of the party pleading the statute, to pay the debt.

The promise, whether established by a verbal acknowledgment, or by payment, was equally effectual. Payment is no higher evidence of a promise than an acknowledgment, except that the act was less liable to be misconstrued. (Smith's Leading Cases, vol. 1, p. 726-7, and cases cited; Benedict agt. Shoemaker, 1 Ker., 185; Segourney agt. Drury, 14 Pick., 390.)

The statute of 1848 (Code) has taken from a verbal promise, any efficacy to renew a debt barred by the statute of limitations, but has not changed the effect of a part payment, as evidence of a promise to pay it.

It is now settled that a payment made by one joint debtor does not renew the debt as against the other, whether made before or after the statute has run. (Shoemaker agt. Benedict, 1 Ker., 183.)

Therefore, the payment made by Thorne in 1857, could not operate to renew the debt as against Potter, because this case arising entirely under the provisions of the Code, Potter's alleged acknowledgment of the debt, or promise by requesting Thorne to pay the interest, if available for that purpose before the Code, was entirely insufficient, and

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