Rice v. Wilder

4 N.H. 336 | Superior Court of New Hampshire | 1828

The opinion of the court was delivered by the

chief justice.

The question in this case, is, whether a promise, within six years before the commencement of the suit, to pay a simple contract debt, will take an action of debt upon such contract out of the statute of limitations? In the case of A'Court v. Cross, 3 Bing. 329, Best, C. J. remarks, “the statute says, that actions on the case, account, trespass, debt, detinue and replevin, shall be brought within six years after the cause of action, and not after. These actions, it will be observed, are mentioned in the same section of the act, and the limitation of the time within which they must be brought is the same in all of them. In all of them except assumpsit, the .six years commence from the moment there is a cause of action, and that timé cannot be enlarged by any acknowledg-merit.” These are the remarks of the present chief justice of the English court of common pleas, and it is believed that no decision, nor even a dictum, to the contrary, is to be found in any book. The propriety of the decisions in which if has been held that an acknowledgment of a debt will take assumpsit out of the statute, is, in the case just mentioned, questioned. And we are inclined to think it very questionable whether those decisions accord with the real intent, object and spirit of the statute. But however that may bfe, wehave no hesitation in holding, that the principle of those decisions, cannot be applied to an action of debt, and that the evidence offered by the plaintiffs, in this case, was altogether insufficient to sustain the verdict. We are therefore of opinion that there must be A new trial granted.