Arnold v. Elliott ( 1846 )

Chben, J.

delivéred the opinion of the court.

The plaintiff brought his action of debt on a note executed to him by the defendant for three hundred dollars.

The defendant pleaded his discharge in bankruptcy; to which the plaintiff replied, a subsequent promise.

On the trial the plaintiff proved, that in May 1845, his agent presented the note to Elliott, and that he promised to pay it sometime in the next year. He again presented it in June, and the defendant paid some, and said he would pay the balance when he got able. This suit was brought in March 1846.

The court charged the jury, that to entitle the plaintiff to recover under the new promise, he must wait until the expiration »of the next year, before he commenced his suit.

It is insisted this instruction is erroneous; that the promise to pay next year, is a recognition of the debt, and revives its obligatory force instantly, and that suit may be brought presently afterwards.

We do not concur in this view of the case. On the contrary, we thinl? his Honor was correct. Certainly the promise to pay, at a subsequent day, is not ground for a present action. No action would lie, without the promise, and as it depends upon the promise, it can be brought, only, after the period limited in the promise.

Affirm the judgment.