Martin v. Williams
New York Supreme Court
L\ ERROR, to the Court of Common Pleas of Washington county. Williams, as executor, &.c., brought an action of as-sumpsit against Martin, in the court below. The declaration contained three counts: I. An insimul computasscnt, with the testator, and a promise to pay him. 2. An insimul computasscnt, with the testator, and a promise to pay the plaintiff’, as executor. 3. An insimul computassent, with the plaintiff', as executor, and a promise to pay him.
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L\ ERROR, to the Court of Common Pleas of Washington county. Williams, as executor, &.c., brought an action of as-sumpsit against Martin, in the court below. The declaration contained three counts: I. An insimul computasscnt, with the testator, and a promise to pay him. 2. An insimul computasscnt, with the testator, and a promise to pay the plaintiff’, as executor. 3. An insimul computassent, with the plaintiff', as executor, and a promise to pay him. The defendant pleaded : 1. Non assump-Jit. 2. Non assumpsit infra sex annos. To the second plea, the plaintiff’replied, that the defendant did…
1Opinion of the CourtYates, J.
The statement of the defendant, that he and the testator had settled, and that he had paid him all hut 75 dollars, is an acknowledgment of the debt. In Johnson v. Beardslee, (15 Johns. Rep. 4.) this court decided, that an acknowledgment of the debt is evidence sufficient for the jury to presume a new promise, w7hen, as in this case, it w7as not accompanied with a protestation against paying it. The motion for a nonsuit was, therefore, correctly overruled, (a)
But the testimony offered to prove the amount claimed as a set-off, ought not to have been rejected, on the ground of the statute of…
2Cited by4 opinions
- Smith v. RuecastleSupreme Court of New Jersey · 1800
- Ford v. RehmanOhio Supreme Court · 1833
- Howe v. SaundersSupreme Judicial Court of Maine · 1854
- Turnbull v. StroheckerCourt of Appeals of South Carolina · 1827