Barker & Co. v. Executors of Glascow

1 Tapp. Rep. 230

Opinion

President.

The authorities cited in support of the demurrer, so far as I have examined them, have little or no bearing upon the question. The 2d and 3d pleas arc, however, clearly bad, because they do not go to the time when the cause of action accrued, but to the time of the promise. This was a promise to transport to, and deliver flour in, New Orleans, within a reasonable time j the action did not accrue to the plaintiff, instantly on the promise being made, but only after the lapse of a reasonable time; so the negligence complained of, must have been at a time subsequent to the promise. If the cause of action has acci'ued within four or six years, it matters not when the promise was made — 1st Mod. 71 — 1st Vent. 191 — 1 Mod. 89 — & Lord Rayn. 838.

Demurrer sustained.

The defendant then moved for leave to amend his pleas.

President. — After the court have decided on a demurrer, an amendment will not be allowed, unless the proposed amended or new plea, goes to the merits of the action, which generally the statute of limitations does not; and no circumstances appearing in favor of the equity of such plea in this ease, the amendment cannot be allowed.