St. John v. Garrow

4 Port. 223 | Ala. | 1836

HOPKINS, J.

— This was an action of assumpsit,-brought by the plaintiff against the defendant as an indorser of a bill of exchange, dravvn on the nine-' teenth day of February, eighteen hundred and twenty-five, at ten days’ sight, presented to the drawee, for acceptance, which he refused to make, on the twenty-fourth of March, in the same year, and protested for non-payment, on the sixth of April afterward.

Upon the trial of the plea of non-assumpsit in the Circuit Court of Mobile County, the plaintiff proved every thing that was necessary; and to support the issues which he had taken to the pleas of the statute of limitations, he proved by a witness, that about a year after the bill was returned, the defendant frequently mentioned the bill to him, as a liability which then existed, and assented to an arrangement that was made with a prior indorser, by which more than a year was given to that indorser, to pay the bill. Upon this evidence the Circuit Court refused to instruct the jury, that proof of the acknowledgment of the debt, within six years before the commencement of the action, removed the bar created by the statute — and did instruct them, that, to take the case out of the statute, an acknowledgment and a promise to pay were both .necessary.

A bill of exceptions was taken by the plaintiff, to the refusal of the Court to give the instruction for which he asked, and to that also, which was given.

We think the principles are settled, that in actions ex contractu, any expression which amounts to an admission that the debt was due, or the liability existed at the time, takes the case out of the statute, and revives the original cause of action.

Such an anknowledgment is an implied promise to. pay, and is equivalent to an express promise. It has the same effect, whether it be made to the creditor, or another person, before the time had elapsed, which would have created, but for the acknowledgment, the bar of the statute, or afterward.

As an acknowledgment revives the debt, proof of the admission, supports the cause of action, stated in the declaration, and is proper, under a general replication to a plea of the statute. A cause of action is held to accrue, from the tinte an acknowledgment is made: the effect of one is, therefore the same, whether made before or after the bar of the statute was created. An acknowledgment tobe followed by these effects, must be an unconditional one, that the debt is due, or the liability exists, when 4 Port. 223acknowledgment is made, and not merely that the demand was originally just^*

The acknowledgment in this case was, we think, sufficient i to remove the bar oí the statute; and the Court erred, both in refusing the instruction, for which the plaintiff asked, and giving that, to which exception was taken.

Let ^ie ju<%raeat he reversed, and the cause re? ^nded.

* SuwhSx joh¿s 3X5 C.L.R245; ¿¡Wash, o 'CB.ep.404 892-3;’ if srBhnlt íímaió— oTIim^of act’ns.Vo