Brewer v. Brewer

6 Ga. 587 | Ga. | 1849

By the Court.

Lumpkin, J.

delivering the opinion.

Does the written acknowledgment of Clark Brewer, given to the executors of Drewry Brewer, take the case out of the Statute of Limitations ?

[1.] To my mind it is, to all intents and purposes, a due hill, and might very properly have been declared on as such. The presiding Judge, in ruling that this acknowledgment was not sufficient to take the case out of the Statute, cited as authority, the decisions of this Court. None are designated. We apprehend that His Honor was misled by the oral report of some unpublished opinion.

In Dickinson vs. McCamy, (5 Ga. Rep. 486,) we say — “A direct promise to pay is not indispensably necessary. Nor is any set form of words requisite to take the case out of the Statute. The acknowledgment, however, must admit that the debt continues due at the time of making it.” And in Broach vs. Marlin and others, (6 Ga. Rep. 21,) this Court expressly recognize and adopt the position of Mr. Angell on this subject, namely : that the new promise, to take the case out of the Statute, may be either express or implied; and that an implied promise will he inferred from a clear and unqualified acknowledgment of the debt. Not that it was once due and owing, but that the liability still subsists. Beyond this we have never gone.

Believing, therefore, that the written acknowledgment of the defendant in this case is sufficient, both on the score of amplitude and definiteness, we must reveíase the judgment.