Knight v. Clements
Supreme Court of Alabama
Appeal from the Circuit Court of Lowndes. Tried before Hon. J. ,Q. Smith. This was an action commenced by Eliza Perry, by summons and complaint, against the appellant’s intestate and two others, makers of a promissory note, of which the following is a copy : “ $545 00. — Twelve months after date, we, or either of us, promise to pay Zebulon Eudolph, sr., or bearer, five hundred and forty-five dollars, in specie, or its equivalent, for value received.
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Appeal from the Circuit Court of Lowndes. Tried before Hon. J. ,Q. Smith. This was an action commenced by Eliza Perry, by summons and complaint, against the appellant’s intestate and two others, makers of a promissory note, of which the following is a copy : “ $545 00. — Twelve months after date, we, or either of us, promise to pay Zebulon Eudolph, sr., or bearer, five hundred and forty-five dollars, in specie, or its equivalent, for value received. January 26,1854. (Signed) Alexander Eeid,. Jesse B. Knight, C. W. Knight. The note being barred on its face, the complaint averred two payments,…
1Opinion of the Court
PECK, 0. J.
In an action on a promissory note made by three parties, against one of the makers, who pleads the statute of limitations, and the plaintiff seeks to avoid the bar of the statute by a payment indorsed on the note before the bar was complete, he must prove affirmatively— the burden is on him — that the payment was made by the defendant before the cause of actioD was barred.
The statute requires this. It declares that “ no act, promise, or acknowledgment is sufficient to remove the bar to a suit, or is evidence of a new and continuing contract, except a partial payment made upon the…
2Cases cited3 opinions
- Edgar v. StateSupreme Court of Alabama · 1869
- M'Gehee v. GreerSupreme Court of Alabama · 1838
- Watson v. DaleSupreme Court of Alabama · 1834
3Cited by12 opinions
- Broadway v. StateSupreme Court of Alabama · 1952
- Thompson v. CollierSupreme Court of Alabama · 1911
- Barnett v. WaddellSupreme Court of Alabama · 1946
- Hunter v. StateSupreme Court of Alabama · 1974
- Waltmire v. BadgerSupreme Court of Kansas · 1943
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