#### * Enoch Fiske *versus*The Inhabitants of Needham.

A vote passed at a town meeting appointing a committee to “ settle the dispute ” between the town and the plaintiff, was held not to take the plaintiff’s demand out of the statute of limitations.

This was an action of the case upon sundry promises, one of the counts in the declaration be'ng upon an account annexed to the *408writ, and all of them for the same items and demands, of a di i more than six years before the commencement of the suit.

The defendants pleaded the general issue, that they never pro.-iised, and also on the statute of limitations, that they never promised within six years before the action brought. The general issue was joined by the plaintiff; and to the plea upon the statute of limitations he replied promises within six years, upon which issue was also joined by the plaintiff.

At the trial of these issues, which was had before the late Chief Justice *Sewall,*at the sittings here after October term, 1812, the plaintiff, to prove that the defendants had promised within the-six years, produced a certified copy of the following vote of the town of *Needham, viz.: “*At a legal meeting of the inhabitants of the town of Needham, on the 14th of March, 1808, it was inserted in the warrant thus: To see if the town will choose a committee to settle all the dispute that there appears to be between Mr. *Enoch Fiske*and the town, in any way that appears to them the most reasonable. And *David Smith,*Lieutenant *Moses Garfield, Ephraim Jackson, Nathaniel Bullard,*and *Aaron Smith,*were chosen a committee to settle the dispute between Mr. *Enoch Fiske*and the town.” And having no other evidence to that purpose, the judge directed a nonsuit; being of the opinion that this vote was not, in any sense, an acknowledgment or recognition of the plaintiff’s demands, for the purpose of avoiding the plea upon the statute of limitations.

The nonsuit was entered subject to the opinion of the Court, as to the legal operation of the said vote ; and the nonsuit was to be set aside, and a new trial granted, if the Court should be of opinion that the said vote was to be regarded as evidence of a promise within six years.

[ *453 ] ** Metcalf,*for the plaintiff. If the town in this case

had found the balance in their favor, on the adjustment of their accounts with the plaintiff, every one will understand that they expected payment of such balance ; and then it is but a fair presumption that they thought themselves holden to pay a balance due from them.

“ *I will do what is right and just*” has been held sufficient to take a promise out of the statute. (1) The vote of the town amounts at least to as much as this: “ *I am ready to account, hut nothing is due.”*Lord *Mansfield*says (2) this, and a much slighter acknowledgment, will take a debt out of the statute.

At the Lent Assizes at *Exeter,*1771, in an action upon a note of hand dated sixteen years anterior to the trial, *Price Baron*said that *409evidence of the defendant’s having acknowledged it to be his handwriting was sufficient to take it out of the statute. (3)

“ He would rather come to a settlement, though he should allow the account, &c., than wait the event of a lawsuit.” *—Ferguson*vs. *Fitt.*(4) — “ If he has any demand on me, it shall be settled.” (5)

The general principle adduced in support of this limitation, which is the presumption that the defendant has lost the evidence necessary to his defence, (6) does not apply so strongly to a corporation aggregate as to an individual. Such corporations manage their affairs more in the manner of records. If they lose their papers, as they do their business, by the means of agents, these would still be witnesses for them.

The operation of the vote of the town ought to have been left to the jury. (7)

*B. Whitman*for the defendants.

(1)

 1 *Dickens,*163.

(2)

*Cowp.*548, *Freeman*Vs. *Fenton.*

(3)

 2 *Show.*126. —12 *Vin. Abr.*192.

(4)

1 *Hayw.*239.

(5)

 2 *D. & E.*761.

(6)

8 *Mass. Rep.*134.

(7)

*2 D. & E.*760. —4 *East,*604, *in notis.*— 1 *Binney,*212.

Jackson, J.,

delivered the opinion of the Court.

It having been long settled that an acknowledgment of a debt within six years before the action brought, will prevent the operation of the statute of limitations, such a contract not being within the intent of the statute, we have now * to [ * 454 ] determine whether the vote of the defendants, produced in evidence in this case, contains such an acknowledgment. If it do not, if it would have been the duty of the judge to instruct the jury on this evidence to find a verdict for the defendants, and if we should have set aside a verdict returned contrary to such direction, as being unsupported by any legal evidence, then the nonsuit must stand.

The plaintiff, it appears, has no other evidence to prove the issue on his part, and it would be worse than useless to send the cause to a trial, which must finally terminate in favor of the defendants, with additional trouble and expense to both parties.

The case of *Bicknell*vs. *Keppel*(8) has a strong resemblance to the present. The defendant, having been applied to for payment of the debt by a letter from the plaintiff, wrote an answer, not saying that he owed, or that he had paid, the debt, but referring the plaintiff to the solicitor of the defendant,“ whose opinion,” he adds, “ always governs me; ” and further adding that “ he [the solicitor] is in possession of my determination and ability.” Upon this, with some other evidence, which was not material, the plaintiff obtained a verdict; but it was set aside, and a new trial granted; the Courl *410being of opinion that the letter did not contain a sufficient acknowledgment to take the case out of the statute.

In the case at bar, the defendants appoint a committee or agents, “ to settle the dispute between Mr. *E. Fiske*and the town.” This is referring the plaintiff to those agents for an answer to his demand, and for the determination of the defendants respecting it. The opinion of the agents was to govern the town. It is even much stronger than the case cited; because here is no intimation of a want of ability to pay a just debt, nor of any preexisting determination, or even knowledge, respecting this demand, which were the only points on which any doubt arose in the other case.

There is another particular in which the case at bar differs ma terially from all those usually referred to on this subject. [ * 455 ] * It is, that the defendants are a corporation aggregate, the members of which are continually changing, and of course cannot be presumed to be acquainted with former transactions of the corporation, as an individual is supposed to be with his own affairs. When, therefore, a debt is demanded of a town, espe cially if it be of old date, they may well be supposed ignorant, both of .the ground, of the demand, and also as to any payment or settlement respecting it. If they refuse to pay it, without any inquiry into the circumstances, they may be guilty of injustice to a creditor, and expose themselves unnecessarily to a lawsuit. Such an inquiry cannot be conducted satisfactorily at a town meeting. They must, almost of necessity, appoint a committee to ascertain the facts, and either to make a final settlement, as in this case, or to make a report of the facts to the town, for their determination. This is the usual course on such occasions, and, indeed, seems to be the only mode in which a town can proceed, with a due regard to their own rights and those of their assumed creditors.

An individual, on being presented with a bill for services rendered, may perhaps know at once that the demand is unjust, and accordingly refuse to pay it; but if he is in doubt whether the services were rendered, or whether he has not paid for them, he may take the bill, in order to ascertain those facts, without thereby acknowledging that any thing is due, or that any such service was rendered. If, in such a case, instead of examin'ng it himself, he commissions his clerk or book-keeper, or any other agent or friend, to make the inquiry, it will make no difference; nor even if he adds, that he will pay the demand, if his agent determines that it is justly due. This is so far from acknowledging the debt, that it clearly expresses his ignorance or his doubts respecting his liability. If, indeed, his agent should determine that it was justly due, the party might be liable on this conditional promise.

*411The defendants, in this case, have done no more than is here supposed of the individual. They undertook to examine, by their committee, into the justice of the plaintiff’s demand;

* evidently because they did not know, or did not be- [ * 456 J lieve, that it was justly due. If the plaintiff ever presented his demands to that committee, we must understand that they were not allowed, as the plaintiff furnishes no evidence on that point; and the next step that we find to be taken is the commencement of this suit.

This is very different from the case of *Lloyd*vs. *Maund,*in 2 *D. & E.*760, which was referred to by the plaintiff’s counsel at the argument. The letter of the defendant, in that case, was written in ambiguous terms; not denying the debt, nor directly acknowledging it; pretending not to know at whose suit he was arrested, when it was apparent, from the letter, that he did know; with other circumstances, from which it might be inferred that he acknowledged the debt, and was only endeavoring, by threats and persuasions, to induce the plaintiff to forbear the prosecution of the suit. It was decided that the letter ought to be submitted to the jury, who alone were competent to infer that fact from such evidence.

In the present case, there is nothing equivocal or ambiguous in the paper on which the plaintiff relies. No evidence was offered to raise any doubt respecting the terms of the vote, or to vary their natural and obvious meaning. There was therefore no question of fact for the consideration of the jury.

The nonsuit is not set aside ; and there must be judgment for

*Costs for the defendants,**(a)*

(8)

 4 *B. & P.*20.

(a)

*Robbins*vs. *Otis,*1 *Pick.*368. — *Bangs*vs. *Hall, 2 Pick.*368. — *Whitney*vs. *Bigelow,*4 *Pick.*110.