Tompkins v. Brown
Court for the Trial of Impeachments and Correction of Errors
Error from the New-York common pleas. Brown sued Tompkins & Gardner in the common pleas in January, 1844, and declared .in assumpsit upon the money counts, and for goods sold. Tompkins pleaded non-assumpsit, and actio non accrevit infra sex annos, upon which the plaintiff took issue. Gardner suffered a default.
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Error from the New-York common pleas. Brown sued Tompkins & Gardner in the common pleas in January, 1844, and declared .in assumpsit upon the money counts, and for goods sold. Tompkins pleaded non-assumpsit, and actio non accrevit infra sex annos, upon which the plaintiff took issue. Gardner suffered a default. At the trial in April, 1844, the plaintiff proved the sale of goods to the defendants in January and February, 1837, to the amount of about $120; and he then offered to show that within six years before the commencement of the suit, the defendant Gardner promised to pay the debt. The…
1Opinion of the Court
By the Court, Beardsley, J.
The court held that a promise to pay when able, was sufficient to avoid a plea of the statute of limitations, without giving any evidence of the pecu*249niary condition of the party who made the promise. This xvas erroneous; the ability to pay should have been shown. (Tanner v. Smart, 6 Barn. & Cress. 603; A'Court v. Cross, 3 Bing. 329: Scales v. Jacob, id. 638; Ayton v. Bolt, 4 id. 105; Haydon v. Williams, 7 id. 163; Bush v. Barnard, 8 John. 407; Wetzell v. Bussard, 11 Wheat. 309; 2 Phil. Ev. 138, 139; Stephens' N. P. 249, 2061; Leigh's N. P. 1253, 1273, 4; Chit. on…
2Cases cited2 opinions
- Wetzell v. BussardSupreme Court of the United States · 1826
- Bush v. BarnardNew York Supreme Court · 1811
3Cited by22 opinions
- Brooklyn Bank v. . BarnabyNew York Court of Appeals · 1910
- Shoemaker v. . BenedictNew York Court of Appeals · 1854
- Willoughby v. IrishSupreme Court of Minnesota · 1886
- Mayberry v. WilloughbyNebraska Supreme Court · 1877
- Tate v. ClementsSupreme Court of Florida · 1878
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