Morrison v. . Morrison , 14 N.C. 402 ( 1832 )

On the trial at MOORE, on the last spring circuit, before Norwood, J., the plaintiff's action being barred by the above recited act, he (403) offered evidence of an acknowledgment of the debt by the intestate within three years, and his Honor instructed the jury that if they were satisfied that the intestate had acknowledged the debt within three years, the plaintiff's action was not barred.

A verdict was returned for the plaintiff, and the defendant appealed. after stating the case, proceeded as follows: What would be our opinion if the evidence had amounted to an acknowledgment of a subsisting debt by the defendant's intestate, and the action had been brought on that acknowledgment instead of the original contract, we are not called on to say. But it is sufficient in the present case to say that the action is not founded on any subsequent acknowledgment of indebtedness, or promise to pay, or to settle a debt by the defendant's intestate, but it is brought on the original contract. The action of debt being founded on the original contract, the plea of the act of limitations is a bar. The replication that the defendant's intestate promised to pay the debt within three years next before the time of suing out the writ is not good. In actions of assumpsit, where the plaintiff replies to a plea of the statute of limitations, a promise made by the defendant within three years next before suing out the writ, the action is now said to be on the new promise, and the recovery is effected on that, and not on the original promise; and the moral obligation resting on the defendant to pay the old debt is the consideration to support the action on the new promise. However the law may be on this question, we give no opinion, namely, whether in assumpsit the recovery is on the new promise, or whether the new promise removes the statute, and the recovery is had on the original promise. In the case of A'Court v. Cross, 11 Eng. C. L. Rep., 124, Best, C. J., commenting on the statute 21 Jas. I, (404) observes that 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. In all of them, except assumpsit, the six years commences from the moment there is a cause of action, and that time cannot be enlarged by any acknowledgment. But in assumpsit it has been holden that although six have elapsed since the debt was contracted, if the debtor promises to pay it within six years, he cannot avail himself of this statute — because this promise, founded on a moral consideration, is a new cause of action." The same learned judge then proceeds and remarks that in assumpsit the plaintiff should declare on the new promise, for the old one was barred by the statute. According to this authority, it is evident that the judge below was mistaken in informing the jury that a new promise or acknowledgment of the debt would take this case out of the act of limitations; this action is not brought on the debt arising under the new promise, but it is brought on the original contract, and the action on that was barred by the act of limitations at the time the writ was issued. We think the judgment must be reversed, and a new trial granted.

PER CURIAM. Judgment reversed.

Cited: Wagstaff v. Smith, 39 N.C. 4; Thompson v. Gilreath, 48 N.C. 495;Brannock v. Bushinell, 49 N.C. 34; Hewlett v. Schenck, 82 N.C. 235.