Brown against Campbell.
In Error.
ERROR to the Common Pleas of Franklin county.
This was an action brought by Charles Campbell, the plaintiff below, .against John Brown, the defendant, for money lent, and money paid for his use, and for money had and received by the defendant for the use of the plaintiff. The defendant pleaded non assumpsit, and the act of limitations, and thereupon, issues were joined.
The plaintiff gave evidence to prove that his agent, William Findley, had paid a sum of money belonging to him, to *177
Andrew Kennedy and Company, of Philadelphia, for the use, and on account of the defendant. . -
*176The counsel for either party have a right to ask the opinion of the court on any point of law arising out of the evidence, and pertinent to the issue. But they have no right to ask an opinion on matter of fact.
In acase consisting* of evidence written and parol, the defendant’s counsel has no right to ask an opinion, whether, on thn whole, the plaintiff h^supported liis action.
Where the defendau|applied to A and requested him to pay to B, out of the money of the plaintiff, or of other persons expSuted to be in his hands, a sum of money, for the use of the defendant, and A did apply the money pfcthe plaintiff to the use of the defendant in a payment to B, the law will raise an assumption.
In such a case, if the defendant was under a misapprehension as to the funds from which the payment to B was made, noninterest should be allowed further back than the demand of the plaintiff. The rule is, to allow interest where the defendant has retained the money of the plaintiff unlawfully, and against his consent.
A letter from, the defendant* to the plaintiff in which he denies, that he was ever liable to the plaintiff’s demand, but states thatanother person is responsible, by whom he takes it for granted payment has not been made, and of whom he offeis to furnish the plaintiff with evidence to recover, will not avoid the act of limitations.
*177The defendant contended, and' offered evidence to prove, that he had remitted to the said William Findley, then in the city of Philadelphia, several orders drawn on the said Findley, to the amount of the sum paid to Andrew Kennedy and Company, and that the money paid to Kennedy and Company arose from those orders.
In order to avoid the effect of the act of limitations, the plaintiff gave in evidence a letter of the defendant to him, in which he denied that he was ever responsible to the plaintiff, but referred to a third person whom he represented to be liable, and of whom he offered to assist the plaintiff with evidence to recover.
The evidence being closed, the counsel for the defendant prayed the court to direct the jury, that the plaintiff had failed in supporting the issues. The 'court refused to give such direction, but charged the jury to the following effect.
Hamilton, President. If the defendant applied to Wil-' Ham Findley to pay the money of the plaintiff, or of others, which was expected to come into his hands, to Andrew Kennedy and Company., for the defendant’s use, and'afterwards, in consequence of such application, thé very money of the plaintiff actually came to the handsofthe said Kennedy and' Company, and was applied to the defendant’s use, to which the defendant assented, by availing himself of the credit given for the payment of the said money, and adjusted the account accordingly, it is a good consideration for an assumpsit to the plaintiff, although at the time when the account wasso settled, it may have been supposed by the defendant that the credit had arisen from other sources and from orders' to-which he had a claim and right of property himself.
The slightest acknowledgment of the debt by thedefendant is sufficient to take the case out of the statute of limitations. Thus if a letter be written by the defendant, saying:, “ I am ready to account, but nothing is due to you;” or if the defendant say, “ if he has any demand against me, it shall be “ settled ;” and even an ambiguous expression in a letter, neither expressly admitting nor denying the demand, may be left to the jury to be considered whether it amounts to an acknowledgment. The Court have great hesitation and doubt on the present occasion, but submit the defendant’s letter to *178the jury, that they may determine whether or not it contains an acknowledgment; in order that the plaintiff, if entitled, may not lose his claim, and that the defendant, at the same time, may have the benefit of an appeal to another tribunal, if necessary.
If the jury shall be of opinion, that the money came to the use of the defendant, and that he is liable on the principle before stated, but that he held the same under a mistaken belief that it was his own, whether the plaintiff shall have interest, will be the subject of equitable consideration. At all events, no interest should be allowed until after demand was made by the plaintiff.
The court sealed a bill of exceptions, which was now argued by
Brown and Watts, for the plaintiff in error.
They cited Vienne v. M'Carty
, Rapalje v. Emory
, Lady Windsor’s Case, Pond v. Underwood
, Day v. Murray, Jones v. Moore
, Jacobs v. Adams
.
Dunlap and Duncan, contra,
cited Bull N. P. 316, Marine Insurance Company v. Young, Sluby v. Champlin, , Smith v. Porter
, 2 Wms. Saund. 64, note A, 12 Vin. 192. Quintock v. England, Smith v. Ludlow
, Dean v. Pitts
.
Tilghman C. J.
after stating the case, delivered his opinion as follows : — The counsel for either party have a right to ask the opinion of the court, on any point of law arising out of the evidence, and pertinent to the issue. But they have no right to ask an opinion on matter of fact; nor in a case like the present, consisting of evidence, both written and parol, had the counsel for the defendant a right to ask an opinion, whether upon the whole the plaintiff had supported his action ; because such an opinion cannot be given, without *179deciding facts which are not within the province of the court. But if it is supposed, that the evidence offered by the plaintiff will not support his action, the defendant without offering any evidence, may demur to the plaintiff’s evidence, by which the facts will be admitted, and the court will decide on the law. .The court, were right therefore, in refusing to answer the general question proposed by the counsel for the defendant. Neither was there any error in the law laid down by the court respecting an implied assumption. Whether the facts mentioned by the president, could be inferred from the evidence, it is not for me to say; but stating them hypo-, thetically, as was done, it cannot be doubted, that the law would raise an assumption.
The case supposed by the court, is, that the defendant applied to Mr. Findley, and requested him to pay to Andrew Kennedy & Co., out of the money of the plaintiff, or of other persons, expected to be in his hands, a sum of money for the use of the defendant; and that Findley did apply the very money of the plaintiff to the use of the defendant, in a payment to Andrew Kennedy Co. The case is so very plain that it hardly admits of an argument. Whether any and what interest should be allowed, was submitted to the jury with this restriction, that if the defendant was under a misapprehension as to the funds from which the payment to Andrew Kennedy Co. was made, no interest should be given farther back than the demand of the plaintiff.
This direction was correct, and as favourable to the defendant as he had any right to ask. The rule is to allow interest where the defendant has retained the money of the plaintiff unlawfully and against his consent. Until the defendant was informed that the plaintiff’s money was applied to his use,he was inno default, and therefore ought not to payinterest. But being informed, he became a wrong-doer in withholding payment, and therefore is subject to damages to the amount of the interest. The court went so far, however, as to leave it to the jury, under the circumstances of the case, whether the defendant should pay any interest.
The last point to be considered is, the charge of the court, on the act of limitations. It was submitted to the jury on the defendant’s letter to the plaintiff, of the 4th April, 1796. I understand the court to have been of opinion, that this letter contained some acknowledgment, from which the jury might, *180if they thought proper, infer a promise which would avoid the act of limitations. I agree, that slight evidence of an acknowledgment is sufficient. So we have repeatedly decided, and such'is the sum and substance of the cases cited for the plaintiff. But I never can agree, that a letter which denies that the defendant ever was liable to the plaintiff’s demand, will avoid the act of limitations merely because it is not denied that payment has not been made. The defendant says, that not he, but another person, is responsible to tbe plaintiff, and he takes for granted, that this person has not made payment, and offers to furnish the plaintiff with evidence to recover against him. If the expressions of the letter had been doubtful, or it had been necessary to refer to something extrinsic in order to understand it, it would have been proper for the jury to consider, whether a promise might not be presumed; but seeing.nothing in it but a denial of the plaintiff’s claim, it appears to me, that there is no ground for a presumption. I am therefore of opinion, that in this part of the charge there is error, for which the judgment should be reversed, and a venire de novo awarded.
Yeates J. and Brackenridge J. concurred.
Judgment reversed, and a venire de novo awarded.