78 N.C. 124 | N.C. | 1878
The only question before us is as to the sufficiency of the promise to remove the statutory bar, and the correctness of the ruling of the court thereon.
1. There have been numerous cases in this State where the Court has been called upon to decide upon the sufficiency of the words used to repel the statute, and we think they establish a principle which will include the case now before us. The following have been held sufficient to enable the plaintiff to recover, notwithstanding the lapse of time: "I have no money, but will call in a few days and settle it. I do not intend to cut the plaintiff out." Smith v. Leeper,
2. The promise to be effectual must also be made to the creditor and not to a stranger. A promise to pay a note which was afterwards transferred does not follow the transfer, and is unavailable to the holder of the note. Thompson v. Gilreath,
In Faison v. Bowden,
The judge below entirely misconceives the meaning of the Court in using the language quoted above, in supposing it was necessary that the promise should be made directly to the creditor in proper person, *85 and could not be made to his attorney. The Court was discriminating between the creditor and persons having no privity or connection with the debt, in saying that the former could not take benefit of a promise made to the latter to avoid the statute. But a promise made to an attorney is in law a promise made to the principal, and can be declared on as such.
We desire to repeat the suggestion heretofore made to the judges in reference to the practice in cases like the present. Had the point of law on which the nonsuit was suffered been reserved with consent of counsel, and the jury been permitted to render their verdict upon the other issues, the case might have been finally disposed of here, and thus the expense and inconvenience of another trial avoided. The verdict, if for the defendant upon the issues, may have rendered (127) the point of law reserved immaterial; and if for the plaintiff, the judge could then have set aside the verdict and directed a nonsuit. If upon the appeal it is found that he erred in this, the order setting aside the verdict would be reversed and judgment be here entered upon the verdict.
As the case comes before us, we are compelled to order a new trial.
PER CURIAM. Venire de novo.
Cited: Briggs v. Smith,
(128)