No. 4723 | Cal. | Jul 1, 1876
Under section three hundred and sixty of the Code of Civil Procedure, a new promise, to take a case out of the bar of the Statute of Limitations, must be in writing; and section one thousand four hundred and ninety-seven of the same Code prescribes the method in which claims against the estate of a deceased person must be presented for allowance. One of the requirements is that “if the claim is founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim.” In this case, Simpson, the creditor, in his own sworn statement in support of the claim, alleged that in the year 1863 he deposited with and loaned to the deceased a sum of money, to be repaid with interest on demand, and that no demand was made until about two months before Galvin’s death, which occurred in December, 1873; and he avers that, on such demand, Galvin promised to pay the debt, with interest from October, 1863. But it is not alleged that the new promise was in writing, nor did he at the trial produce any written instrument containing such promise.
The money having been payable on demand, the Statute of Limitations commenced to run from the time of the loan (Angelí on Limitations, Sec. 95, and authorities there cited); and the debt, having been barred long before Galvin’s death, could only have been revived by a promise in writing to pay it, and no such promise was averred or proved.
Judgment and order affirmed. Bemittitur forthwith.