Rich v. Dupree , 14 Ga. 661 ( 1854 )

By the Court.

Benning J.,

delivering the opinion,

[1.] Was the Court below right in overruling the demurrer to the declaration ?

The plaintiff in error contends that the Court was not; and that the case of Martin vs. Broaph and others, (6 Ga. Rep. 21,) shows it.

But that case is not like this. In that case, the promise was made “ After the bar of the Statute of Limitations had attached”. (22.) In this, the promise was made before. — ■ When made in this, therefore, the old promise was still subsisting and good; and so the effect of the new promise could not have been more than to add continuance to the old promise, to give it a greater length of days than it would have had, if left to itself. The effect could not have been to substitute ,the new promise for the old one — to make the new promise equivalent to a reneAval of the note.

In this case, the foundation of the suit, therefore, is the old promise — the note itself.

The demurrer admits the credit as stated in the declaration. As stated in that, the credit was entered Avithin six years after the note fell due. And the credit, as stated under the Act for simplifying pleadings at LaAV, makes a part of the cause of action. The demurrer, therefore, in admitting the credit to he true, admits the old promise to be good — admits the case to be nut of the Statute of Limitations.

It would not be right, however, for' me to leave the impression that this Court considers the objection of the Statute of Limitations to be one which,'at Law, may be taken by demurrer. The Court is to be understood as expressing no opinion ■on that question. Speaking for myself, I feel no hesitation in saying that I do not believe the objection to be one which can be so taken.

I must say, too, that in referring to the case of Martin z>s. JBroach, I am not to be considered as approving it.

I <jo not approve it. I do not think there is to be found a single English case which supports it. And it is to English cases, and our State Legislation, that we have to look for what is Law. In my opinion, the true rule is to be gathered from the case of Hyleing vs. Hastings, (1 Lord Raymond, 389, 421.) In that case, “Holt, Chief Justice, reported to the King’s Bench, that he had put this case to all the Judges of England, (except Lechmere,) assembled at Serjeant’s Inn, and that they were all of opinion that this conditional promise had brought the case out of the Statute of Limitations ; and that a general indebitatus assumpsit might be well maintained, because the defendant has waived the benefit of the Statute”.

The effect of the new promise is, to bring the old one out of the Statute; i. e. to bring it where the Statute does not operate on it at all. The old promise, by the new one, becomes as good as new. And this, in cases where the old promise is barred at the time of the new.

[2.] Was Christie so interested as to be incompetent to testify for the defendant in error ?

Plainly, he was not at all interested. Eor aught that appears, he stood, in every respect, disconnected from the note.

[3.] In disposing of the first exception, we have disposed of the third. The old promise is the foundation of the suit. The new promise is evidence in support of the old — is evidence to show that this was kept in full force, notwithstanding the lapse of six years, next after it fell due.

[4.] It appears that the conversation to which Christie testifies — that in which he says the plaintiff in error told him “ he would pay the rest as soon as he could”, took place at one time, and that the credit was entered at another and a previous time. Whatever inference, therefore, is to be drawn from the entry of the credit, is to be drawn from it,' notwithstanding the conversation.

Now, as to the inference to be drawn from the entry of the credit, there can be no doubt the Court below correctly stated what it was. And that being so, it follows that the Court could not, as requested, charge that if the promise to pay was accompanied with the condition, “as soon as the defendant could”, the plaintiff could not recover, unless it had been alleged and proved that the defendant had become able. If the first promise was absolute and good, it was sufficient-, although the second might be conditional and worthless. The request to the Court amounts to this : if the second promise is worthless, tell the Jury both promises are worthless.

We find no error in this record.