McCullough v. Henderson

24 Miss. 92

• Court: Court of Appeals of Mississippi
• Decided: April 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

This action was commenced at the May term, 1847, of the circuit court of Adams county, on a promissory note, made by the plaintiffs in error, falling due the 4th of January, 1841. The plea of the statute of limitations of six years was relied on as a defence in the court below. The plaintiffs below, on the trial, read,to the jury two small credits on the note, made on the 14th and 15th of April, 1841; and also a deposition of the teller of the Agricultural Bank, proving that he entered the credits on the note on the days aforesaid, but that he did not recollect by whom the money was paid.

The question is, whether these facts will take the case out of the operation of the statute of limitations. This point, in an analogous case, has been adjudicated by this court in the case of Smith v. Westmoreland, 12 S. & M. 663. In the case quoted, the court held, that a partial payment of a note did not take a case out of the statute, unless accompanied by an express acknowledgment of a farther indebtedness, or by an express promise to pay.

In the case now before us, no proof of such an acknowledgment or promise appears.

Judgment reversed, and new trial granted.