Felty v. Young

18 Md. 163 | Md. | 1862

Cochran, J.,

delivered the opinion of this court.

The questions necessary to consider under the exception' taken in this case, are 1st, whether the acknowledgment, or promise, of the appellee, as proved, was sufficient to remove the bar of limitations? and if so, 2nd, whether upon the pleadings in the case the appellant was entitled to recover?

Mr. Shunk, the agent of the appellant, proved, that when he presented the single bill, in question, to the appellee' for collection, “he said it was Ids note, that he had borrowed the money, mentioned in it, from his father” the appellant's intestate, “and had never paid it, and did not think he would, because his father .had not left him as much' of his estate as he thought he ought.” This admission,- or acknowledgment, was attended by no qualification which could, in any way, abate or impair his moral obligation to pay the debt, and under the 3rd and 9th rules laid down in Oliver vs. Gray, 1 H. & G., 204, was sufficient to take the case out of the statute, and give to the appellant a right of action upon it, although it did not revive the remedy upon the single bill. In the case of a simple contract debt, upon which the remedy barred by limitations is revived by a new promise, the original-, cause of action must be declared on, but in the like case of a specialty, the remedy is upon the new promise, (he specialty, itself, being useful, only, as evidence of a consideration to support the new promise. 10 G. & J., 50. 3 Md. Ch. Dec., 398. 4 Md. Rep., 362.

The remaining question, whether the appellant so declared as to be entitled to recover upon the acknowledgment, or promise proved, depends upon the construction - to be given to the Act of 1856, ch. 112, to simplify and abridge the system of pleading, under- the provisions of which the declaration was drawn. Before the passage of that Act it was necessary for an administrator,- relying upon a new promise to avoid the plea of limitations, to insert a count on the promise made to himself, or to his intestate, as the case might be. An express promise to an executor created an assumpsit to him,- founded' On the antecedent consideration of the debt due to the testator, and a count had to be framed upon it, so that the allegation and proof might correspond. 1 Chitty's Plead., 204, 205. 4 H. & J., 485. But since the passage of the Act' referred to, the observance of many of the distinctive forms of action', as also of the pleadings incident to them, have become'unnecessary. Under it the statement' of a substantial cause of action, without regard to form, is sufficient, and in section 52 it is expressly declared, “that whatever facts arc necessary to constitute the ground of action, defence, Or reply, as the ca'se may lie, shall be stated in the pleading, and nothing more;”—in section 53, that' “promises which'need not be proved, or promises in indebitatus'counts, and mutual promises to perform agreements, and all statements of a like kind, shall be omitted;”—arid in section 64, that “the form of pleading shall, in no case whatever, Control its substance.” The declaration in this case contains, among others, counts for money payable' to the appellant as administrator of his intestate, for money loaned, and fo'r money found to be due on an account stated; and wé think, as itdays substantially an assumpsit' to the appellant, as administrator, in consideration of the antecedent debt due to the inttestat'e, that it may be considered as'embracing' the substance of a count-on the promise proved.

(Decided January 30th, 1862.).

With this view of the case, we dissent from the'instructions given by the court below, and reverse the judgment.

Judgment reversed, and procedendo' awarded.