Strickland's Adm'r v. Walker

37 Ala. 385 | Ala. | 1861

STONE, J.

The first charge given -and excepted to m this case, asserts that, to revive a debt barred by the statute of limitatioHSy the promise or acknowledgment must be proved by evidence that, is clear and explicit. We have duly weighed this language, in connection with the authorities, and feel constrained to pronounce it erroneous. The promise, or acknowledgment, must be clear and explicit. No doubtful, ambiguous, or indeterminate language will avail. It must be, in its terms,, unequivocal and determinate. If it be a promise, it .must be an .unequivocal promise ; if an acknowledgment,.tbat-acknowledgment must go the length of admitting the present , existence of a debt, which the party is willing to pay. . These, principles are fully settled, in this State, by numerous adjudications. — Ross v. Ross, 20 Ala. 105; Townes v. Ferguson, ib. 147; Bryan v. Ware, ib. 687 ; Moore v. Lesueur, 18 Ala. 606 p Boxley v. Gayle, 19 Ala. 151; Pool v. Relfe, 23 Ala. 701.; Pitts v. Wooten, 24 Ala. 474 ; Jordan v. Hubbard, 26 Ala. 433 ; Rolston v. Langdon, 26 Ala. 660 ; Evans v. Carey, 29 Ala. 99 ; Bell v. Morrison, 1 Pet. S. C. 360.

But thex-e is a wide difference between the promise, or acknoioledgment, and the evidence by„which that promise or 'acknowledgment is made to appear. The former, no matter bow clearly it be proved — even though it be in writing — is not sufficient, if its terms be equivocal or indeterminate. But there is no rule which requires that the proof of such promise shall be different -in measure, or more strict than that which is required to establish any disputed fact in a civil suit. Evidence which satisfies the minds of the jury, is enough.

We suppose the circuit court was misled by an 'inaccurate expression found in the opinion in the case of Bell v. Morrison, supra, and copied by Mr. Greenleaf, in his work on Evidence, 2d vol. § 44G. The language of the court in that case was, that “whenever the 'bar of the statute is sought to be removed, by proof of a new promise, the promise, as a new cause-of action,-ought to be proved in-a clear and explicit manner.” ' The point in the case of- Bett v. Morrison was on the sufficiency of the promise,, and not of the evidence, by which that promise was proved. The meaning of the court must have been,, that the-promise should be clear .and explicit.- Thus construed, if harmonizes with the weight of the American and the later English decisions, and with the analogies of the law. — See authorities supra; and Bangs v. Hall, 2 Pick. 368; Gardiner v. Tudor, 8 Pick. 206 ; Cambridge v. Hobart, 10 Pick. 232 ; Mount Stephen v. Brook, 3 B. & Ald. 141; Tanner v. Smart, 6 B. & Cress. 603.

It is not our purppse td. criticise" the 2d charge given. See King v. Griffin, 6 Ala. 387 ; Harbin v. Levi, ib. 399; Spence v. Rutledge, 11 Ala. 590 ; Barron v. Vandvert, 13 Ala. 232.

The judgments the circuit.court is reversed, and the ■cause remanded.