Johnson v. Beardslee

15 Johns. 3

• Court: New York Supreme Court
• Decided: January 15, 1818
• Status: Published

Opinion

Per Curiam.

The demand of the plaintiff was liquid ^¡¿¡j John Beardslee, in 1805, and he died in 1806 j consequently, before the statute of limitations had attach-? ed on the debt. Within six years before this s.uit was brought, two of the defendants, and who were also executors of John Beardslee, admitted the demand, and promisepayment.

. Whether the new promise revives the old debt, or oan he enforced as a new promise, upon a valid consideration, is immaterial to be discussed here. On a review of all the cases, (Danforth v. Culver, 11 Johns. Rep. 146.) we were of opinion, that the acknowledgment of the execution of the notes, with an express declaration that the party meant to avail himself of the statute of limitations, was not evidence of a new promise to pay; but we did not intimate, that an acknowledgment of the debt would not have been sufficient, unaccompanied with a protestation against paying it j indeed, there is a current of authorities, that an acknowledgment of the debt is evidence sufficient for the jury to pre-. sume a new promise.

Here, however, is not only an acknowledgment of the debt, but an express promise to pay; and it has always been holden, that a debt, barred by the statute, is a sufficient consideration to uphold a promise. With respect to the other defendants, who have not acknowledged the demand, or promised to pay it, the acknowledgment of one joint debtor, of the existence of the debt, is sufficient to take the case out of the statute. (Smith v. Ludlow, 6 Johns. Rep. 267. 2 H. Bl. 340. Doug. 652.) The court see no reason xvhy that principle should not apply to the case of executors," heirs, and devisees, as well as to every other case.

Judgment for the plaintiff.