Griffin v. Justices of the Inferior Court , 17 Ga. 96 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

[1.] The over-ruling of a demurrer to a declaration, even if wrong, is no ground for a new trial. If the cause of demurrer be such that the demurrer should have been sustained instead of over-ruled, that cause may be such as to be availed of in a motion to arrest the judgment. If it cannot be made use of to arrest the judgment, it cannot be made use of at all. It certainly cannot be made use of to get another Jury trial.

In this caso, however, the declaration seems, to this Court, to be sufficient.

The acknowledgment, of a debt, by the debtor, before the debt has become barred by the Statute of Limitations, takes the debt out of that Statute. :

This is the general rule. (Yea vs. Fouraker, 2 Burr. 1099. Bryan vs. Horseman, 4 East. 599. Rich vs. Dupree, 14 Ga. R. 663.)

In the two former of these cases, the acknowledgment was not made until after the debt had become barred, and yet it was held to be sufficient to take the debt out of the Statute.

But it is insisted, that if the debtor who makes the acknowl- ' edgment of the debt happens to be an executor, the case thus made is excepted from the operation of the general rule; and in support of this position is read a late English Case, which is certainly in point: the case of Tullock vs. Dunn and another, executors, (Ryan & Moody, 416.) But this is a nisi prius decision, and one which rests upon no cited authority or stated reason — one for which no reason could be stated, as I think, which' could not be as well stated for the case of an acknowledgment made by any debtor — and one which is at variance with the law, as that was understood and impliedly declared by the law making power — Parliament, a few years after the decision was made. This implied declaration, of what was the law, was made by Parliament in “ Lord Tenderden’s Act,” passed in the 9 George IV. A part of that Act declares, “ that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise, by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to.deprive any party of the bemefit thereof, unless such acknowledgment or promise shall be' made or contained by or in some writing to be signed by the party, to be chargeable thereby : and that where there shall be two or more joint contractors, or executors, or administrators, ©f any contractor, no such joint contractor, executor or administrators, shall lose the benefit of the said enactments, or either of them, so as to be chargeable, in respect or by reason only of any written acknowledgment or promise, made and signed by any other or others of them: provided, always, that in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts, or this Act, as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff, as to each defendant or defendants against whom he shall recover and for the other defendant or defendants against the plaintiff”.

Now it is impliedly declared, by expressions in this part of' the Act, that the old law was such as to put acknowledgments^ made by executors and administrators, upon the same footing: as those made by original debtors; and so that it was such as to give to acknowledgments made by them, the same effect as it gave to acknowledgments made by original debtors. And the new law which the Statute makes, continues in existence this principle. It gives efficacy to a toritten acknowledgment, when made by an executor or administrator, to the same extent that it does to an acknowledgment made by an original debtor.

The nisi prius case admits that a promise made by the executors, would be sufficient. But what reason is there to give* efficacy to a promise which does not equally exist to give efficacy to an acknowledgment ? The continued existence of the debt is the main thing. And if, in any case, the acknowledgment of the continued existence of that, without a promise to pay it, is sufficient to charge the debtor, if he is an original debtor, why should not the acknowledgment of the continued existence of the debt, without any promise to pay it, be also sufficient to charge the debtor, if he happens to be an executor or administrator?

The facts of the case are, in one respect, of a different character from that of the facts of the case before this Court. In that case, the acknowledgment of the executors was by “words only”. In'this the acknowledgment was by an actual payment of a part of the debt — a much more safe form of acknowledgment.

Then, it does not appear, in that case, but that the acknowledgment may have been made after the debt had become barred.

[2.] Upon the whole, this Court feels bound to disregard this case, and to consider the law to be, that an acknowledgment made by an executor, at least if made before the acknowledged debt has been barred by the Statute of Limitations, is sufficient to take the debt out of the Statute.

And therefore, we have to say, that in our opinion, the charge of the Court was not erroneous.