Shipley v. Shilling

Alvey, C. J., delivered the opinion of the Court. This was an action of assumpsit brought by the appellee against the appellants as executors of Elias Brothers, de ⁵⁶² ceased. The claim sued on was for wort and labor performed, articles furnished, and money paid, for the appellants’ testator in his life-time. And among other defences made .to the action, the Statute of Limitations was pleaded;, and it is under that plea that the questions arise that are presented on this appeal.

At the trial in the Court below, the appellee offered evidence in support of his claim sued for, and also evidence of certain statements or acknowledgments of the appellants’ testator, made within three years of the bringing of' the action, whereby, as it is contended by the appellee, the bar of the Statute of Limitations was removed. Both parties offered prayers for instruction to the jury; and it is. from the ruling of the Court upon those prayers that this, appeal is taken. By the exception taken two questions, are presented: First, whether the evidence offered to remove the bar of the Statute of Limitations was legally sufficient for that purpose, if believed by the jury; and, second, whether the instructions given were sufficiently definite, in requiring the jury to find that the acknowledgments testified to, if found to have been made by the testator, were made with reference to the claim sued for, and none other. 1. With respect to the first question, we are of opinion that the admissions or acknowledgments of the testator, as testified to by the witnesses Benson and Hull, if believed by the jury, were legally sufficient to remove the bar of the Statute; and therefore the Court below was right-in rejecting the third prayer of the appellants..

The testimony of Benson is explicit to the fact that the testator admitted that the appellee had an account against him, the testator; and Hull testifies that he heard the testator say that ho owed the appellee an account; though on neither occasion of making these admissions, was there any account exhibited, or specially mentioned. Such statements, it is true, are very indefinite in their nature, and do not. ⁵⁶³ prove, or tend to prove, the items charged in any particular account. But after the correctness of the account sued on is otherwise proved, according to the requirements of the law, such general achnoidedgments, if it be found that they were intended to apply to the account so proved, will be deemed sufficient to remove the bar of the Statute. For the principle is now well settled in this State, at least, that where a debt is admitted to be due, the law raises by implication a promise to pay it; and it is therefore immaterial whether the promise be made in express terms, or be deduced from an acknowledgment as a legal implication; as, in either case, the effect is, the removal of the bar of the Statute, and the restoration of the remedy upon the original demand.

Ellicott vs. Nichols, 7 Gill, 96 . But when the new promise is sought to be deduced from a general, indefinite acJcnoidedgment, such as is relied on in this case, the question is one for the jury to determine, whether the acknowledgment of the debtor, within the period of limitation, applies to the original demand sued on or not. The jury must find to what debt or claim the admission or general acJcnoidedgment referred; and if the plaintiff shows but a single indebtedness, it may apply to that; or if the demand sued for be an account of several items, it may apply to any part thereof, according to the evidence and the finding of