Shoemaker v. Benedict

Full title: SHOEMAKER against BENEDICT, ex'r, impleaded, c

Court: Court of Appeals of the State of New York

Date published: Jun 1, 1854

11 N.Y. 176 (N.Y. 1854)

Opinion

June Term, 1854

F. Kernan, for the appellant.

V. Owen, for respondent.

ALLEN, J.

The plaintiff in this action relies upon payments by one of several makers of a promissory note, made before the statute of limitations had barred an action upon it, to take the case out of the statute as to all the makers, and continue the joint liability of all for six years from the time of the last of such payments.

Before the decision of Van Keuren v. Parmelee, (2 Comst. 523,) it would have been considered very well settled upon authority that such payments did operate to prevent the statute of limitations from attaching to the demand; that by the joint contract, there was a unity of interest, by which a quasi agency was created between the contractors, so that the admission or promise of one would have bound all. ( Whitcomb v. Whiting, Doug. 652; Patterson v. Choate, 7 Wend. 441; Hammon v. Huntley, 4 Cowen, 493; Johnson v. Beardsley, 15 John. 3; 6 John. Ch. 291; Sigourney v. Drury, 14 Pick. 387; Perkins v. Raynal, 2 Bing. 306; Burleigh v. Stott, 8 B. C. 36; Pease v. Hurst, 10 id. 122; Wyatt v. Hudson, 8 Bing. 309; Frye v. Barker, 4 Pick. 382; Hunt v. Bridgham, 2 id. 581; White v. Hale, 3 id. 291; Channel v. Ditchburn, 5 M. W. 494; Griffin v. Ashley, 1 Car. P. 139; Rew v. Petet, 1 A. E. 196; Greenleaf v. Quincey, 3 Fairf. R. 11; Pike v. Warren, 15 Maine, 393; Joslyn v. Smith, 13 Verm. 356; Shelton v. Cocke, Munf. 311; Besley v. Fuller, 1 McCord, 541; 2 Bay, 533.)

While the decision of Van Keuren v. Parmelee does not decide the precise point presented by the case before us, it involved principles which were necessarily decided, and which have an important bearing, if not a controlling influence, upon the decision of this cause. The judge who pronounced the opinion of the court in that case, refers to the distinctions supposed to exist between that case and this, but did not profess to lay much stress upon them. He did not, however, undertake to decide whether there were or were not distinctions between the two cases which would influence the decision, and bring them within different rules. His argument was adapted to the settlement of general principles, and the application of those principles to the case then under consideration; and he designedly left the question open as to what other cases those principles should govern, and what facts and circumstances would operate to place a case in other respects similar to that decided, without the rule then established. But the court in that case, as the court of last resort in the state, reviewed a series of decisions of the courts of this state and of others and of England, and established as the law of this state, principles inconsistent with many of the cases which have been followed by our courts as law, and has in some respects made the law more self-consistent. They have adopted, to a great extent, the views of Mr. Justice Story, as expressed in Bell v. Morrison, (1 Peters, 351,) which the supreme court of this state, acting upon the principle of stare decisis, had not considered proper to do. ( Dean v. Hewit, 5 Wend. 257.)

The cases cited above, in which it has been held that the promise of one joint debtor was sufficient to take the case out of the statute of limitations and revive or continue the debt as against all, have followed the decision of Whitcomb v. Whiting, and have merely applied the principle of that case to cases substantially the same, or supposed to be so, and only differing in circumstances. They have depended upon the presumed agency of one to do an act to bind the other debtors, growing out of the joinder in the contract and unity of interest. The leading case was decided at a time when the statute of limitations was looked upon with disfavor by the courts, and when any acknowledgment, even the slightest, of the existence of a debt, was sufficient to deprive the party of the benefit of the statute, although the acknowledgment was made under circumstances showing that the debtor did not intend to recognize or admit an existing intention or liability to pay. ( Freeman v. Fenton, Cowp. 548; Bryan v. Horseman, 4 East, 599; Lawrence v. Worrall, Peake, 93; Beecher v. Hannay, 4 East, 599, n. c; Clark v. Bradshall, 3 Esp. 155.) The courts were willing to lay hold of any circumstance which tended to show the existence of a demand, or that a demand once existing had not been paid, to take the case out of the statute; and hence perhaps they were the more ready to imply an agency which would not have been implied for any other purpose or under any other circumstances, and bind one person by the acts of another, whom he never designed to constitute his agent for any purpose, and to hold that a partial payment by one, as it negatived to some extent the presumption of a prior payment of the debt, was evidence against all that the debt had not been paid and was an existing liability. The statute was treated as raising a presumption of payment, and that presumption being rebutted, the statute was treated as no bar. The early cases in England upon this subject have not been generally followed in this country, and are no longer considered as law in that country; but the statute of limitations has been treated not as merely raising a presumption of payment, but as a statute of repose. It has been held that a circumstance or expression from which a probable or possible inference could be drawn of the acknowledgment of a debt was not sufficient to overcome the defense under it. ( Sands v. Gelston, 15 John. 511; Wetzell v. Bussard, 11 Wheat. 309; Bangs v. Hall, 2 Pick. 368.) It is now held that there must be an express promise or a clear recognition of the present existence of the demand, from which a promise may be implied. ( Stafford v. Richardson, 15 Wend. 302.) There must be an admission that there is a subsisting debt, which the debtor is willing to pay.

It needs no authority that an admission, to be operative, must be made by the party to be affected, or by an authorized agent. It is substantially a new contract, upon which the action is brought when it is sought to be sustained by evidence of a new promise, when but for such new promise it would have been barred by the statute of limitations. ( Green v. Crane, 2 Ld. Raym. 1101; Bell v. Morrison, supra; Thompson v. Peter, 12 Wheat. 565; Dean v. Hewit, supra; Tompkins v. Gardner, 1 Denio, 247.)

The only question then is, whether the joint contract creates an agency in one of several joint debtors to continue a debt or renew a debt already barred against all, and prevent the statute of limitations from attaching by a new promise, express or implied; or in other words, whether such joint debtor is authorized in virtue of his relation to the parties, to make such new contract which shall bind them all. The cases in England, and in this state prior to Van Keuren v. Parmelee, have followed the case of Whitcomb v. Whiting, and held that such agency did exist. But the decisions were made without adverting to the fact that the decision of Whitcomb v. Whiting, while it was perhaps not inconsistent with the principles upon which the courts proceeded at the time it was pronounced, as to the construction to be put upon and the effect to be given to the statute of limitations, was inconsistent with the more modern decisions under the statute upon the subject, and with the case of Green v. Crane, and other authorities to the same effect. The decision of the court in Van Keuren v. Parmelee, without reference to the reasoning of the judge by whom the opinion was delivered, necessarily decides or recognizes as law: 1st. That the action is substantially, though not in form, upon the new promise, and that such promise is not a mere continuation of the original promise, but a new contract springing out of and supported by the original consideration; 2d. That to continue or renew the debt, there must be an express promise to pay or an acknowledgment of the existence of the debt, with the admission or recognition of an existing liability to pay it from which a new promise may be inferred; 3d. That such acknowledgment or promise, to take a debt out of the statute, must be made by the party to be charged or by some person authorized by him; and 4th. That there is no mutual agency between joint debtors by reason of the joint contract, which will authorize one to act for and to bind the others in a manner to vary or extend their liability. These questions, with the exception perhaps of the first, were directly involved in the case and necessarily decided, and the decision of the court was unanimous.

Do the points, in which this case differs from that decided by the court of appeals, take it without the principles decided and without the statute of limitations? I think not.

First. One point of difference is, that in this case partial payments and not a promise or naked acknowledgment of the existence of the debt, are relied upon to take the case out of the statute. But partial payments are only available as facts from which an admission of the existence of the entire debt and a present liability to pay may be inferred. As a fact by itself, a payment only proves the existence of the debt, to the amount paid, but from that fact courts and juries have inferred a promise to pay the residue. In some cases it is said to be an unequivocal admission of the existence of the debt; and in the case of the payment of money as interest, it would be such an admission in respect to the principal sum. Again, it is said to be a more reliable circumstance than a naked promise, and the reason assigned is that it is a deliberate act, less liable to misconstruction and misstatement than a verbal acknowledgment. So be it. It is nevertheless only reliable as evidence of a promise, or from which a promise may be implied. Any other evidence which establishes such promise would be equally efficacious, and most assuredly a deliberate written acknowledgment of the existence of a debt and promise to pay, is of as high a character as evidence of a partial payment to defeat the statute of limitations. In either case the question is as to the weight to be given to evidence, and if a new promise is satisfactorily proved in either method, the debt is renewed; and without a promise express or implied, it is not renewed. The question still recurs, who is authorized to make such promise? If one joint debtor could bind his co-debtors to a new contract by implication, as by a payment of a part of a debt for which they were jointly liable he could do it directly by an express contract. The law will hardly be charged with the inconsistency of authorizing that to be done indirectly which cannot be done directly. If one debtor could bind his co-debtors by an unconditional promise, he could by a conditional promise, and a man might find himself a party to a contract to the condition of which he would be a stranger.

Second. Another fact relied upon to distinguish this case from Van Keuren v. Parmelee is, that the payments were made before the statute of limitations had attached to the debt, and while the liability of all confessedly existed. In some cases in Massachusetts, this, as well as the fact that the revival or continuance of the debt was effected by payments from which a promise was implied rather than by express promises, were commented upon by the court as important points. But I do not understand that the cases were decided upon the ground that those circumstances really introduced a new element or brought the cases within a different principle. The decisions in truth were based upon the authority of the decisions of the English courts, and prior decisions in the courts of that state. That a promise made while the statute of limitations is running, is to be construed and acted upon in the same manner as if made after the statute has attached, is decided in Dean v. Hewit, and Tompkins v. Gardner, supra. If the promise is conditional, the condition must be performed before the liability attaches so as to authorize an action. It does not, as a recognition of the existence of the debt, revive it absolutely from the time of the conditional promise. And in principle, I see not why a promise made before the statute has attached to a debt, should be obligatory when made by one of several joint debtors, when it would not be obligatory if made after the action was barred. The statute operates upon the remedy. The debt always exists. An action brought after the lapse of six years upon a simple contract, must be upon the new promise, whether the promise was before or after the lapse of six years, express or implied, absolute or conditional. The same authority is required to make the promise before as after the six years have elapsed. Can it be said that one of several debtors can on the last day of the sixth year, by a payment small or large, or by a new promise, either express or implied, so affect the rights of his co-debtors as to continue their liability for another space of six years, without their knowledge or assent, or any authority from them, save that to be implied from the fact that they are at the time jointly liable upon the same contract, and yet that on the very next day, without any act of the parties, such authority ceases to exist? If so, I am unable to discover upon what principle. And may the debt be thus revived from six years to six years through all time, or if not, what limit is put to the authority? If any agency is created, it continues until revoked. The decision of Van Keuren v. Parmelee, is upon the ground that no agency ever existed, not that an agency once existing had been revoked.

The debt in this case is joint and several. The several liability of the party making the payments is doubtless continued by his own acts; but as against the others, I cannot, without disregarding Van Keuren v. Parmelee, or drawing distinctions for which I can find no reason, come to any conclusion other than that the action is barred by the statute. See also Lewis v. Woodworth, (2 Comst. 512.) In this latter case it was held that one of two joint contractors could not be deprived of a defense by the admission of the other; that one had not power to increase or extend the liability of the other beyond the terms of the contract. To hold that one joint debtor could by his acts deprive his co-debtors of a defense under the statute of limitations, and could renew and extend his liability by a new contract, would be directly inconsistent with the principles decided in this case.

GARDINER Ch. J., and SELDEN, PARKER, EDWARDS and ALLEN, Js., for the reasons given in the foregoing opinion, were in favor of affirming the judgment of the supreme court.

DENIO, J. (dissenting.)

It does not appear that the relation of principal and surety, or that of partners, at any time existed among the makers of this note, nor that there has been any change in their situation inter sese since it was made, whatever that situation then was. There has been no period of six years during which a payment was not made and indorsed, from the giving of the note to the time of the commencement of the action. There is no evidence whether the payments, which are admitted to have been all made by Thomas A. Paine, were made with or without the knowledge or concurrence of the other defendants, unless the fact that the plaintiff omitted to give any proof upon that point establishes the want of such concurrence. If the defense in this action is made out, it follows that in the case of a note past due, made by several persons, where the holder has received regular annual or other periodical payments of interest or regular installments of principal by the hands of one of the debtors, he will lose his remedy against the others for any balance which may remain, after the lapse of six years, unless he is able to show an agency in the party so paying, for his co-debtors, other and beyond what may be implied from the fact of their joint indebtedness. With the conviction which I entertain that such an adjudication would be contrary to the generally received understanding of the legal profession and the community, as it would certainly be inconsistent with a great many adjudged cases, both in England and in this country. I am of opinion that this court should not confirm it, unless constrained to do so by precedents which it has no right to disregard. The defendant's counsel of course relies upon the decision of this court in Van Keuren v. Parmelee, (2 Comst. 523.) That was an action on a note made by a copartnership firm, consisting of three persons, which was dissolved about a year after the note became payable. About nine years after the dissolution, and four years after an action on the note had been barred by the statute of limitations, one of the former copartners acknowledged the existence of the debt and promised to pay it. The action was against the three joint makers, and the two who had not made any promise pleaded the statute of limitations; and this court adjudged that the action was barred. Unless there is a distinction founded upon principle between that case and the present, the judgment of the supreme court, which was made in professed obedience to the former, is right and ought to be affirmed. The plaintiff's counsel seeks to distinguish the cases by referring to two particular circumstances in which they differ. First, the evidence to avoid the statute in the former case in this court was a parol promise, while in the one under review it consisted of payments by one of the debtors, which are claimed to be more authentic acts and to be entitled upon this question to a different consideration; and second, that in this case there was never a lapse of six years without a payment, which is at least equivalent to a new promise, and that, therefore, the demand was never barred, if a promise by one joint debtor is an answer to the statute in any case. It was also remarked that the decision in Van Keuren v. Parmelee proceeded very much upon the revocation of the authority of the several partners to bind their associates, which was effected by the dissolution of the copartnership; and it is correctly said that no such feature exists in the case now before the court.

That the act of making a partial payment on account of a moneyed demand, in the ordinary course of business, is a more satisfactory recognition of the continued existence of such demand, than evidence of declarations respecting it, cannot be denied; and for that reason, it is seen that in the recent acts which require a promise to avoid the statute to be in writing, the effect of partial payments is left unaltered. ( Stat. 1849, p. 638, § 110; Stat. 9 Geo. 4, ch. 14.) All the cases agree that a payment is equivalent to a new promise to pay the residue of the debt Upon that point there is no controversy; but the question here is as to the authority of T.A. Paine to affect the rights of his co-debtors by any thing which he could do. It is unimportant whether the act be a promise in terms or a payment of part of the debt. If he was unable from want of authority to change the situation of the others, it cannot be affected by any act of his, however authentic it may be. So as to the absence of any partnership relation in this case. Partners have a certain authority to affect the rights of their copartners by acts within the scope of the common business, which ceases when the company is dissolved. There having never been any copartnership among the makers of this note, their relation to each other is substantially the same as that of partners who have dissolved their connection after contracting a debt. In both cases they are simply joint debtors, without any other authority in respect to each other than what results from that relationship.

It remains to consider whether there is a distinction in principle between payments or promises made by one of several joint debtors at a time when the demand was unaffected by the statute, and such as are made after it has attached. The eminent judge who delivered the published opinion of the court, in Van Keuren v. Parmelee, though he does not lay great stress on the distinction, is yet careful to point out that the promise in that case was made after the demand had been barred by the operation of the statute. He refers prominently to it in the statement of facts, and remarks that it must strike one with astonishment that promises by one of the debtors "made at such a time, and under such circumstances," should bind them all. In alluding to this difference further on, he says, that if it should be held a sound distinction, the defense in that case would be sustained, "for the statute had run upon the claim long before the new promise was made." In distinguishing the case before him from Whitcomb v. Whiting, ( Doug. 652,) he remarks that "it does not appear in that case that the action was barred prior to the payment." Now, although much of the reasoning of the learned judge would be fatal to the plaintiff in the case now under review, and it is perhaps probable that he would have considered the demand barred though the promise had been made before the statute had run; yet it cannot be affirmed that such would have been the opinion of the court. There was another opinion delivered which the reporter has not published; and it may be that the judge who prepared it, and a majority of the court placed the decision upon the very distinction under examination. They clearly might have done so. The case of Whitcomb v. Whiting was adjudged more than seventy years ago, and its authority is not weakened in my estimation by the consideration that it was made by that very eminent judge, Lord Mansfield. It decided that in the case of joint debtors, if one make a payment or a promise to pay the debt within six years before the commencement of the suit, it avoids the bar of the statute as to all; the one, as Lord Mansfield observed, acting virtually as the agent for the rest. This case has been steadily followed in the English courts to the present day; for though some cases which might be considered as embraced by its principle have been distinguished, as Brandram v. Wharton, (1 Barn. Ald. 463,) and Atkins v. Tredgold, (2 Barn. Cress. 23,) yet it has maintained its ground and is at this day considered as the settled law. ( Perham v. Raynal, 2 Bing. 306; Pritchard v. Draper, 1 Rus. Myl. 191.) In this state the case of Whitcomb v. Whiting has been repeatedly acted upon, and was never questioned until the decision in Van Keuren v. Parmelee. The doctrine of that judgment was affirmed and followed in the following cases in the late supreme court and the court of chancery: Smith v. Ludlow, (6 John. 267;) Johnson v. Beardslee, (15 id. 3;) Hammon v. Huntley, (4 Cowen, 493;) Patterson v. Choate, (7 Wend. 441;) Roosevelt v. Mark, (6 John. Ch. 266, 291.) In the three earliest of these cases, the one in Douglass was referred to by the court as an authority for its decision, and the later cases were based upon the authority of those which had preceded them in this state. In none of them was the distinction now attempted to be maintained adverted to, nor does the attention of the court seem to have been called to it. It is certainly competent for a court of ultimate resort to reconsider, and for good reasons to overrule any course of decision of the subordinate tribunals; and if we could regard this court in Van Keuren v. Parmelee as having passed such a judgment upon this series of adjudications, it would be our duty to carry into effect and apply it to this and to all future cases. But in my opinion the more just conclusion is that the doctrine of Whitcomb v. Whiting has only been limited in its application so as to exclude cases like that of Van Keuren v. Parmelee, when the promise relied on was made after the demand had been barred by the statute of limitations. There are weighty reasons for thus restricting the doctrine. When six years have elapsed without an acknowledgment or promise to pay, there is a presumption of fact of considerable strength that the demand has been satisfied. The statute declares that this presumption shall be conclusive against the creditor unless the case is within some of the exceptions. There is in such a case a substantial reason for holding that a new contract is necessary to enable the creditor to get rid of the bar of the statute; and if a new contract is required all the parties to be charged should concur in making it. When the statute has run, the privity which existed between the co-debtors is extinguished, and there is not in principle any reason why, after that, one should be able to bind the others by an acknowledgment, a payment or an actual promise. In very many contracts, while the obligation of the debtors is joint as it regards the creditor, as between the debtors themselves, one of them ought to pay. The others have a right to know when the statute has worked an extinguishment of their liability, and to rely upon the discharge wrought by it. When they find that the time of limitation has elapsed without any thing having taken place which assumed the continued obligation of the contract, it is fit that the discharge which the law has provided should not be liable to be defeated by the subsequent act. of another, in which they did not participate and which they could not control. This idea was glanced at in Atkins v. Tredgold, already referred to. One of the joint debtors had died, and afterwards and after the time of limitation had passed, the survivors made payments, and the creditor brought an action against the executors of the deceased, relying upon the payments made by the survivor as a promise to take the case out of the statute. Chief Justice Abbot said that a decision in favor of the plaintiff would introduce great difficulty in administering the affairs of testators. "Suppose," said he, "an executor to have waited six years and then, no claim having been made, to dispose of the assets in payment of legacies. He might, if the plaintiffs were allowed to prevail, be subsequently rendered liable to the payment of demands to any amount by the acknowledgment of a person originally joint debtor with the testator. The inconvenience and hardship arsing from such a liability satisfies me that the principle of Whitcomb v. Whiting ought not to be extended to this case." Bailey, J., placed his opinion in part upon the very distinction upon which I am insisting. "Here," he says, "the statute appears to have attached before the payment was made by Robert Tredgold, [the survivor;] and, therefore, John Tredgold, [the testator,] being at that time protected could not be subjected to any new obligation by the act of Robert." There is a manifest incongruity in a rule which shall hold a debtor entirely discharged at one time, and consider him liable at a subsequent period, on account of an act or declaration to which he was not privy. On this ground I entirely concur in the judgment in Van Keuren v. Parmelee. It is right upon principle and consistent with sound policy; and it can be sustained moreover without entirely overturning a series of adjudications almost coeval with the political existence of the state. We have only to say that when the principle of Whitcomb v. Whiting has been applied to cases where the payment or promise was made after the demand was barred, it was misapplied, and the attention of the court not having been called to the distinctions referred to, it cannot be said that it would not have been recognized had it been insisted on. The report in Douglass does not show whether the payment was before or after the statute had run. In Atkins v. Tredgold, just referred to, Bailey, J. and Holroyd, J. understood it to have been made before the statute had attached and while all the parties remained liable on the original undertaking. There is no case in England or in this state where the distinction upon which I proceed has been repudiated. In Bell v. Morrison, (1 Peters, 352,) which is a case much relied upon by the court in Van Keuren v. Parmelee, and by the defendant's counsel here, Judge Story was particularly careful to apply his reasoning to the case of a demand barred by the statute. " When the statute has run," he says, "against a joint debt, the reasonable presumption is that it is no longer a subsisting debt; and therefore there is no ground on which to raise a virtual agency to pay that which is not admitted to exist." Again, "The question is not, however, as to the authority of a partner after the dissolution to adjust an admitted debt; we mean admitted by the whole partnership or unbarred by the statute; but whether he can by his sole act, after the action is barred by the lapse of time, revive it against all the partners, without any new authority communicated to him for this purpose." "When the statute of limitations has once run against a debt the cause of action against the partnership is gone. The acknowledgment if it is to operate at all is to create a new cause of action; to revive a debt which is extinct, and thus to give an action which has its life from the new promise implied by law from such an acknowledgment, and operating and limited by its purport. It is then in its essence the creation of a new right and not the enforcement of an old one."

Having thus shown that in all the cases where the efficacy of a new promise by one of several joint debtors to take a case out of the statute of limitations, has been denied, the period of limitation had elapsed before the promise was made, and that the circumstance that the statute had attached has been relied on in each of these cases, it is not incumbent on me to explain the nature of the agency by which such a promise by one debtor is held effectual when made within the period of limitation. It is enough to vouch the uniform and consistent course of adjudications by which that principle has been established. Should it be said that the relation of joint debtors does not enable one of them to modify the joint contract without the concurrence of the others, the answer is that, if it be a modification, it is settled law that one joint debtor is competent to effect it. The law of limitations is peculiar. Its object is to protect parties against stale demands where the defense has become unavailable by lapse of time. It is a branch of that law as well settled by authority, as it is reasonable and just in principle, that where one of the joint debtors has made a payment or a fresh promise to pay, within the period of limitation, a new date is assigned to the cause of action for the purpose of reckoning the time of limitation. But the same general principle exists in many other cases, where an acknowledgment by one of several who are jointly concerned is binding on the others. It has been applied to the case of co-trespassers, the joint trespass being first established; ( The King v. The Inhabitants of Hardwick, 11 East, 578;) to cases of conspiracy and other like cases; ( Perham v. Raynal, supra; Crary v. Sprague, 12 Wend. 41.) There is a privity of a certain kind between joint debtors while the original obligation remains in force. Either has a right to pay the debt or any part of it, and such payment does something more than extinguish the joint demand. It creates a new cause of action in favor of the party paying, against the other debtors for contribution, or for the whole amount paid in the case of payment by a surety.

I have not examined the late cases in the supreme court on the principal question, because they are not in harmony with each other, and are too recent to have been extensively acted upon. ( Bogert v. Vermilya, 10 Barb. 32; Dunham v. Dodge, id. 566; Reid v. McNaughton, 15 id. 168.) Much able reasoning and a reference to many authorities which I have not thought it necessary to notice will be found in the opinions of the learned judges.

In conclusion, I think it right to say that where a principle of law of frequent application and of extensive influence in the profession and among business men, has been constantly and frequently held for a long course of years, it is eminently indiscreet and unsafe, to depart from it, upon any notion that it is inconsistent with some other supposed theoretical principle. We ought not to forget that upon a great variety of legal questions, including the one under consideration, the only resort of the citizen is to precedents afforded by the judgments of the courts. If they cannot rely upon these, they are, for aught I can see, in no better condition than the subjects of a country whose laws exist in the unlimited discretion of the magistrate. If a legal rule is found to be inconvenient, or otherwise impolitic, the legislature has ample power to change it, and such change will necessarily be prospective; but if this be done by the courts, the new rule is at once applied to transactions which have passed, and which were entered into when the law was understood to be different.

I am therefore in favor of reversing the judgment of the supreme court.

JOHNSON, J., concurred with DENIO, J.

Judgment affirmed.