Kennedy v. Foster's
Court of Appeals of Kentucky
CASE 9 — PETITION ORDINARY APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The action should have been upon the alleged new promise, and not upon the original note, on which the action against the surety was -barred by the statute of limitations (Hopkins v. Stout, 6 Bush, 378; Egbert v. McMichael, 9 B. Mon. 44; Graham v. Hunt, 8 B. Mon. 7; Carson v. Osborne, 10 B. Mon. 155; Carr v. Robinson, 8 Bush, 274), and the action should have been dismissed. 2. The action not being on the new…
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CASE 9 — PETITION ORDINARY APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The action should have been upon the alleged new promise, and not upon the original note, on which the action against the surety was -barred by the statute of limitations (Hopkins v. Stout, 6 Bush, 378; Egbert v. McMichael, 9 B. Mon. 44; Graham v. Hunt, 8 B. Mon. 7; Carson v. Osborne, 10 B. Mon. 155; Carr v. Robinson, 8 Bush, 274), and the action should have been dismissed. 2. The action not being on the new promise, proof of the alleged new promise amounted to nothing. Proof without allegation is ineffectual. (Hunt v. Daniel,…
1Opinion of the Court
JUDGE COEER
delivered the opinion oe the court.
The appellee brought this suit September 2, 1875, on a note executed by A. J. Kennedy, as principal, and the appellant W. J. Kennedy, as surety, dated July 3, 1868, and due one day after date.
A. J. Kennedy pleaded a discharge in bankruptcy, and the appellant pleaded and relied upon the statute of limitations of seven years in favor of sureties. (See. 4, art. 6, chap. 71, Gen. Stat.)
A trial was had and verdict and judgment were rendered for plaintiff, and the defendant has appealed.
Numerous errors are alleged, but we need notice but one. The payee…
2Cases cited2 opinions
- Coleman v. WalkerCourt of Appeals of Kentucky · 1860
- Walker v. Sayers & HopkinsCourt of Appeals of Kentucky · 1869
3Cited by7 opinions
- Brent v. CommonwealthCourt of Appeals of Kentucky · 1922
- United States Fidelity & Guaranty Co. v. DickasonIllinois Supreme Court · 1917
- Reid v. HamiltonCourt of Appeals of Kentucky · 1892
- Black v. CommonwealthCourt of Appeals of Kentucky · 1916
- McGovern v. RectanusCourt of Appeals of Kentucky · 1907
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