Stewart v. Garrett

Robinson, J., delivered the opinion of the Court. The suit in this case was brought on two promissory notes, to which the defendants pleaded payment and set-off. The set-off filed with the -plea, is an open account, all the items of which are of more than three years stand ³⁹³ ing. To remove tbe bar of the Statute of Limitations relied on by the plaintiff in her replication, the defendants proved by the witness Stone, that in a conversation with the plaintiff at her house, within three years before the filing of the set-off, she showed him the notes sued on; and on being asked by witness why she did not sue the defendants, she replied, “that she owed them for goods bought at their store while she was keeping hotel; and that she did not know how they stood, and that was the reason she had not sued them.” The defendants further proved the sale and delivery of the goods ; and that the account filed as a set-off, was the only account they had against the plaintiff for goods sold to her while she was keeping a hotel.

And the question is whether these facts, are in themselves sufficient to prove a new promise ? To remove the bar of the Statute, the defendants were bound to prove an acknowledgment by the plaintiff of a present subsisting indebtedness, unaccompanied by any qualification or declaration, which, if true, would exempt her from a moral obligation to pay. Further than this, they were bound also to prove that such acknowledgment referred to the identical set-off filed by the defendants. And this we think the proof fully establishes.

It shows not only an unqualified acknowledgment of a subsisting indebtedness to the defendants for goods sold to