26 Miss. 468 | Miss. | 1853
delivered the opinion of the court.
The errors assigned in this case are, that the first and second instructions asked in behalf of the defendant below were improperly refused.
The first instruction so refused, had reference to the effect of a partial payment as taking the case out of the operation of the statute of limitations. This instruction, as it appears copied into the transcript of the record, is unintelligible; but from what we can conjecture as to what it really was, as asked in the court below, it was irrelevant to the case under the state of evidence. The evidence showed a positive promise of the defendant, in the year 1846, to pay the note, and this seems to be the evidence relied on by the plaintiff below to prevent the bar of the statute of limitations. The instructions for the plaintiff below are not made a part of the record here, and there is nothing in this record to show that any point was made in behalf of the plaintiff on the trial below, in relation to a partial payment taking the case out of the statute. For all that the record shows, then, this instruction was properly refused.
As to the second instruction. It appears by the evidence, that the consideration of the note sued on was the loan of
The judgment is reversed, and the case remanded for a new trial.