Felty v. Young

An acknowledgment by the defendant, that the single bill was his, that he had borrowed the money mentioned in it from his father, had never paid it, and did not think he would, because his father had not left him as much of his estate as he thought he ought, is sufficient to take the case out of the statute of limitations, and to give to the plaintiff a right of action upon it, although it does not revive the remedy on the specialty itself. In the case of a simple contract debt, the remedy is revived by a new promise, and the original cause of action must be declared on; but in the case of a specialty the remedy is on the new promise, the specialty being useful only as evidence of a consideration to support that promise. Before the Act .of 185.6, eh. 11$, it was necessary for an administrator, rely» ihg upon a new promise, to .avoid the ple.a of limitations., to insert in his declaration a count on the promise made to Jiimself, °1’ to his intestate, as the case might be. But that Act renders the observance of many of the distinctive forms of action, and of the pleadings incident to them, unnecessary, and a declaration, by an administrator, containing counts for money payable to the plaintiff as administrator of his intestate, for money loaned, and found .due on accounts stated, is sufficient to admit proof of a new promise to .the administrator.

Appear from the Circuit Court for Carroll County. Action, brought May 6th, 1858, by the appellant against the appellee, to recover the amount of a single bill for $106, dated Aprj.l 1.0th, 1844, in favor of the plaintiff’s intestate, payable at twelve months. The declaration, drawn under the Act of 1856, oh. 112, is as follows “Henry Felty, administrator of the goods and chattels, rights and credits, which were of J,ohn Young, deceased, by William P. Maulsby and John E. Smith, his attorneys, sues John Young for money payable by the defendant to the plaintiff, for goods bargained and sold by John Young, in his lifetime, to the defendant. “2yid Qount:—And also for work done and materials provided by .John Yopng, in his lifetime, for the defendant, at his request. “3rd Count:—And also for money lent by John Young, in his lifetime, to .the defendant. 4th Count:—And also for money paid by John Young, in his lifetime, for the defendant and at his request. uoih Count:—And also for money received by the defendant for the use of John Young, in his lifetime. “.6th Count:—And also for money found to be due from the defendant to John Young, in his lifetime, on accounts stated between them. “And the plaintiff claims $500.” Pie.as:—Not indebted, as alleged, and limitations. Exception. Jt was admitted that the plaintiff was appointed •administrator of John Young, Sen., deceased, on the 1st of May 1857. The plaintiff then proved by Skunk, that in August 1857, the plaintiff sent to witness the single bill in question, for collection, and a few days afterwards defendant called on witness and asked him to let him see the note which he had against him, from the plaintiff, for collection, and witness handed the same to him, when defendant said “it was his note, that he had borrowed the money mentioned in it from his father and had never paid it, and did not think he would;” witness then asked him why he would not pay the money? to which he replied, “because his father had not left him as much of his estate as he thought he ought to have done;” witness then asked him if he should inform the plaintiff' of his refusal to pay? to which he replied, “tell him to do as he pleases;” at the time spoken of by witness, the plaintiff’s intestate was dead; he was the father of the defendant. The defendant then asked the court to instruct the jury, that on the pleadings and evidence in this cause the plaintiff is not entitled to recover, unless the jury shall find from the evidence, that the defendant acknowledged the existence of a subsisting debt within three years before the commencement of this suit, without accompanying said acknowledgment with any qualification, which, if true, would exempt him Irom a moral obligation to pay, and that the said acknowledgment was made in the lifetime of the plaintiff’s intestate. The court (Nelson, J.) granted the prayer, but at the same' time instructed the jury, that the reason assigned by the defendant for his determination not to pay, is not sufficient in law to release him from any binding promise he might have made, if said promise was otherwise sufficient to take the case out of the statute of limitations; that is, if the promise had been proved to have been made to the plaintiff’s intestate in his lifetime. To this ruling the plaintiff excepted, and from the verdict and judgment against him, appealed. 1st. That Ihe acknowledgment proved in this case is sufficient to remove the bar of the statute. It is clearly an acknowl - edgement of a present subsisting debt, unaccompanied by any qualification or declaration which, if true, would exempt the defendant from a moral obligation to pay. 1 H. G*-, 216, 217, Oliver vs. Gray. 7 Gill, 9S, Ellicott vs. Nichols. 2nd. The fact that the original debt was a specialty, makes this difference only, viz: that in case of a simple contract debt, ,the suit must be brought on the original cause of action, vwhereas in case of a bond, the action is assumpsit on the new promise, and the bond is given in evidence as a consideration for the promise. 10 G. Sf J., 50, Lamar vs. Manro. 4 H. ,Sf J., 539, Maddox vs. The Stale. 7 H. Sf J., 461, Yeasey vs. Basset,t. 3 Md. Ch. Dec., 401, Young vs. Mackall. 4 Md. Repf.) 367, Young Sf wife, vs. Mackall. Acts of 1715, fih. 23, sec. 6, and 1729, ch. 24, sec. 21. 3 G. Sf J., 491, Carroll vs. Waring. 3rd. The acknowledgment from which the promise may be implied, or even an express promise, need not have been made ,to the o.bligee in his lifetime, or during his lifetime, as the instruction of the court below seems to have required. It may .be made at any time and to any person. 1 H. Sf G., 218, Oliver vs. Gray. 4 H. Sf J., 357, Alistan vs. Contee. 2 Wm. Bl. Rep., 1269, Fenner vs. Meares. 7 H. Sf J., 213, Barger vs. Collins. 4th. That .even if under the old form of pleading the declaration should have contained a special count on a promise made to the plaintiff, as administrator, founded on the antecedent consideration of the debt due to the intestate, still, the present declaration under the new system is sufficiently comprehensive to be considered as embracing such a count, as it substantially alleges an assumpsit to the plaintiff, as administrator, in consideration of such antecedent debt due his intestate. 4 H. Sf J., 495, Barney vs. Smith. Corny Ns Rep., 54, ELenylin vs. Eastings. 9 Pick., 491, 492, Little vs. Blunt. Act if 1856, ch. 112, secs. 2, 33, 53, 64. 5th. That the instruction granted in this case was confused, and calculated to mislead the jury, and submits a question of law to their finding, viz: vvhat kind of an acknowledgment is sufficient to take a case out of the statute? 1 II. dp’ G., 218, Oliver vs. Gray.