Faison v. . Bowden

74 N.C. 43

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

'RoomAN, J.

This action was. commenced on 5th October, 1869, -to recover for medical services to the testator, begin ning on 19th April, 1854, and continued until 22d December,.. 1860. The complaint also contained a demand for medical services to the slaves of the testator, rendered after his death., at the request of the executor. On this last demand no question is presented. A large part of the plaintiff’s demand was.. barred by the statute of limitations, and to rebut this bar he, offered in evidence parol promises by the testator to pay the whole demand against him, made in 1858, 1859 and 1860... The Judge excluded the evidence, because the promises were not in writing as required by C. C. P. sec. 51. (Bat. Rev-chap. 17, sec. 51.)

We consider it clear that this section has no application to the plaintiff’s case. Section 16 provides “ this title (Limitations) shall not extend to actions already commenced, or to • cases where the right of action has already accrued,” &c. Here the right of action had accrued as well upon the new* promise as upon the old, before the adoption of the C. C. P. in August, 1868. Knight v. Braswell, 70 N. C. Rep. 709; Libbett v Maultsby, 71 N. C. Rep. 345.

There was error in the refusal to receive the evidence.

Pee Curiam. Judgment reversed, and venire de novo...