Powers v. Southgate

The opinion of the court was delivered by Bennett, J.

The question presented for our consideration is, whether the declaration of Southgate to the-agent of •the plaintiff, that he would see the amount paid, removed the statute bar, which had then run upon the account. To enable the plaintiff to--recover in this action, the bar must be removed, both as to husband and wife. In Whitcomb v. Whitney, Doug. R. 651, it was held, that the admission of one of two joint and several promisors, took the case out of the statute as to both. Though the soundness of this case has been frequently questioned, and is opposed to a case in Ventris yet it has been followed by subsequent cases in England, and the same case has been recognised, as good authority in this state, in the case of Joslyn v. Smith, 13 Vt. R. 353. It has been frequently said by judges, however, that it ought not to be extended. The principle upon which part payment, or other admission of one, is allowed to affect other parties jointly indebted-with the person who makes the admission, is the community of interest between them, by reason of which the act'of one, in legal contemplation, is the act of all. Lam not aware that it has ever been attemptedHo extend this principle to a case where the promise or obligation was only several, and not either joint, or joint and several. Though the obligation may have been joint, yet, when the community of interest has once ceased, the principle ceases to have application. Hence, in the case of Atkins v. Tredgold, 9 C. L. R. 12, it was held, that after the death of one of two joint, or joint and several contractors, *475 his executors cannot be prejudiced or made liable, by a- part payment by the survivor, after the lapse of six- years.

If the promise of the husband; that he would see the debt paid, removes the statute bar; as against husband and-wife, it must have the same effect if the wife be sued' alone for the debt, upon the death of the husband: But the husband and wife are not joint contractors. The debt is not a, joint debt against husband’and-wife; but remains, after marriage; the debt of the-wife. The husband is not made chargeable for the debt of the wife during coverture, upon the principle that the marriage makes it his debt. If he dies first; the debt does not survive against his representatives, whether the husband, by the marriage, acquired a- property with the wife or not. The reason assigned in the books why the husband, while living, should be a party to the suit with the wife is, that judgment may be against both, as the wife cannot be imprisoned upon a- civil process alone, without a violation-of the marital rights. For myself, then, I think it is clear, that the husband’s admission cannot remove the bar as to the wife, upon the ground that they are joint promisors or debtors..

But it may be thought that the husband acts as the agent of the wife, and that, consequently, his admissions should bind the wife. But whence does he derive his authority ? It is not, I think, one of the marital rights, flowing from the marriage. These are all well defined ; and it has never been heard of, that among these is to be found the right in the husband, by his admissions, to remove a statute bar, which, otherwise, might avail the wife, not only during the husband’s liability, but after that may have ceased.

While under coverture, the wife can make no promise which will be obligatory upon her; and much less can she appoint an agent to make one for her. In the case of Axson v. Blakely, 2 McCord’s R. 5, it was expresssly adjudged that the promise of the wife, after marriage, to pay a debt contracted while sole, will not take the case out of the statute. So in Pittam v. Foster & Norris and his wife, 8 C. L. R. 67. Foster, and the wife of Norris, while sole, had executed a joint note, and it was held that the admissions ot Foster, after the intermarriage of Norris and his wife, would not take the case out of the statute as against Norris and his *476 wife. The case proceeds upon the ground that a promise by the wife, made after marriage, could not be available ; 'and consequently she cannot be prejudiced by the admissions of her co-contractor. To take a case out of the statute, there must be an admission of the debt, accompanied with a willingness to pay it, or at least, not with an unwillingness. As an individual member of this court, I think that South-gate had no authority, either, as derived from a community of interest, as in the case of joint contractors, or from the marriage tie, or from any authority subsequently, by implication, derived from the wife, to make any admissions which should defeat the wife of the benefit of the statute, if sued after the death of her husband, or the husband and wife when both are sued for her debt, as is now the case. These grounds are sufficient, in my view, for affirming the judgment of the county court.

But, as the auditor finds the facts, Southgate did not undertake or promise, for the wife, or for himself and his wife, to see the debt paid; but it is, by its very terms, his sole promise. Some of my brethren, who concur in the result, think the case should stand upon this ground. If it should be objected, as a result of this doctrine, that it creates difficulties in suing, where a feme covert is debtor, and the statute has run ; it is, in my opinion, a sufficient answer to such objection to say that that is no reason why a statute, which has eminently been styled a statute of repose, and which had its foundation in part, as it is said, in the civil law, as a punishment for the negligence of the creditor, should not have its effect.

The plaintiff might sue at an earlier day. In the case before us the claim is of some fifteen years standing.

It is possible an action might have been maintained on the promise, against Southgate alone; but this is a point not before the court, and no opinion is expressed upon it.

Judgment of the county court is affirmed.