Loomis v. Decker
New York Court of Common Pleas
Appeal by the defendants from a judgment of the Marine Court, at General Term. The action was brought to recover for three bills of powder sold by the plaintiffs to the defendant, in 1852, on a credit of eight months. On the trial the defendant admitted that “ the powder mentioned in the complaint was sold and delivered to the defendant by the plaintiffs, in the manner and at the times and prices therein alleged,” and relied solely on the Statute of Limitations as a defence.
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Appeal by the defendants from a judgment of the Marine Court, at General Term. The action was brought to recover for three bills of powder sold by the plaintiffs to the defendant, in 1852, on a credit of eight months. On the trial the defendant admitted that “ the powder mentioned in the complaint was sold and delivered to the defendant by the plaintiffs, in the manner and at the times and prices therein alleged,” and relied solely on the Statute of Limitations as a defence. The plaintiffs, to take the case out of the statute, proved the rendition by plaintiffs’ attorneys of the bill sued for…
1Opinion of the Court
By the Court.
Hilton, J.
To revive a debt barred by the Statute of Limitations, where there is no express promise to pay shown, hut one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay; or, in other words, there should be a clear recognition of the present existence of the demand from which a promise may he implied, and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or…
2Cases cited8 opinions
- Bell v. MorrisonSupreme Court of the United States · 1828
- Sands v. GelstonNew York Supreme Court · 1818
- Sluby v. ChamplinNew York Supreme Court · 1809
- Purdy v. AustinNew York Supreme Court · 1829
- Stafford v. BryanNew York Court of Chancery · 1830
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3Cited by2 opinions
- Fiske v. HibbardThe Superior Court of New York City · 1879
- Ross v. RossNew York Supreme Court · 1875