Briggs v. Executors of Starke ( 1818 )

The opinion of the Court was delivered by

Mr. Justice Nott.

A motion is made to set aside the. verdict in this case, on the ground, “ that the promise of one executor is not sufficient to take a demand out of the statute of limitations, nor to prevent it from, running against it.”

Where several are bound, jointly and severally, in a note or other undertaking, if a joint action is brought against all, and they plead the statute of limitations, proof of a promise by one, within six years, will support the action, notwithstanding it was formerly held otherwise. (1 Espenasse, 150. Douglass, 629, Whitcomb vs. Whiting.) The same principle will apply to executors. The statute of frauds exempts them from liability, on any promise, to pay out of their own estates, unless the promise is in writing. But that statute does not embrace this case. It is to be inferred, therefore, that in other cases their promises shall bind them; otherwise the statute was unnecessary. The motion for a new trial must be refused.

Grimke, Colcock, Cheves, and Johnson, J. concurred. Gantt, J. dissented,