Evans v. Carey
Supreme Court of Alabama
Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKiNSTEY. 'Assumpsit, on the common money counts, by Edward Carey against Matthew 0. Evans, to recover a sum of- money paid by plaintiff to the Milledgeville Rank, as accommodation endorser of T. & R. Evans, of which firm defendant was a partner; pleas, non assumpsit, payment, set-off, the statute of limitations, and the defendant’s discharge in bankruptcy, on all of which pleas issue was joined.
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Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKiNSTEY. 'Assumpsit, on the common money counts, by Edward Carey against Matthew 0. Evans, to recover a sum of- money paid by plaintiff to the Milledgeville Rank, as accommodation endorser of T. & R. Evans, of which firm defendant was a partner; pleas, non assumpsit, payment, set-off, the statute of limitations, and the defendant’s discharge in bankruptcy, on all of which pleas issue was joined. To avoid the bar of the statute of limitations and the decree in bankruptcy, the plaintiff relied on a subsequent promise; and the…
1Opinion of the CourtGoldth Waite, J.
We regard the principle too well settled, at this day, to admit of controversy, that to revive .a debt barred by the statute of limitations, there must be a promise by the debtor to pay the debt. This principle was fully discussed and settled in the case of Bell v. Morrison, 1 Peters, 357, which decisionhas been followed in most of the States. — Angelí onLim. (2d ed.) 228, 245. The promise may be either express or implied, conditional or unconditional. If implied, it can only be so by a clear and distinct recognition of the debt as an existing one; and even then, if the.admission is…
2Cases cited4 opinions
- Bell v. MorrisonSupreme Court of the United States · 1828
- Moore v. VieleNew York Supreme Court · 1830
- Cogburn v. Spence & ElliottSupreme Court of Alabama · 1849
- Branch Bank v. BoykinSupreme Court of Alabama · 1846
3Cited by19 opinions
- Pearson v. DarringtonSupreme Court of Alabama · 1858
- Mason v. HallSupreme Court of Alabama · 1857
- Bradford v. Spyker's Adm'rSupreme Court of Alabama · 1858
- Wolffe v. EberleinSupreme Court of Alabama · 1883
- Griel & Bro. v. SolomonSupreme Court of Alabama · 1886
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