Biscoe v. Stone, 11 Ark. 39 (1850)

Jan. 1850 · Arkansas Supreme Court

11 Ark. 39

Biscoe et al. vs. Stone et al.

Three years was the bar to a note falling due 1st January, 1844, as repeatedly held by this court.

Part payment does not create a new debt resting merely in parol, but revives the old one; and therefore the action must be brought upon the original instrument or cause of action; so too with a written acknowledgement, or new promise.

Writ of Error to Independence Circuit Court.

Debt on a note executed by Denton, and defendants, Tunstall and Stone, 22d Nov. 1842, payable 1st January, 1844, to Sam. C. Roane and others, original trustees of the Real Estate Bank, and endorsed to Biscoe and others, residuary trustees, plaintiffs, determined in the Independence circuit court, in March Term, 1849, before Hon. Wm. C. Scott, judge.

The note was for $500, made jointly and severally by the parties, Denton being principal. Suit commenced 30th October 1848. Plea by both defendants, severally, nil debit and actio, non accrevit within three years. Issue to first plea of each defendant, and three replications to each second plea:

Rep. 1st, payment by Denton, 1st March, 1845, of $135.

Rep. 2nd, payment after note due, viz: March 1st, 1845, by all the parties of $135.

Rep. 3rd, payment by Denton 1st March, 1845, of $135, with averments that suit was commenced within five years thereafter, to wit: Oct. 30, 1848.

Demurrer to each replication sustained, and judgment thereon.

Pike, for the plaintiffs.

Fowlee, contra.

Mr. Justice Scott

delivered the opinion of the court.

No question is presented in this case that has n ot been heretofore settled by this court. The cause of action having accrued the 1st January, 1844, three years were the limitation, as we have repeatedly held.

Part payment does not create a new debt resting merely in parol, but revives the old one, and therefore the action must be brought upon the original instrument or cause of action. Both part payment and an express written acknowledgement or promise being considered as merely removing out of the way the statute bar, so as to enable the creditor to recover notwithstanding, and are not regarded as creating a new substantial contract as the basis of the suit and judgment. Turkey vs. Hawkins, 4 Man. Grang. & Scott 664, p. Wilde C. J. Barn vs. Bolton, 2 ib. 476. Wainman vs. Rynman, 1 Wels. Har. & Gard. 118. Tripp vs. Davis, 12 Mees. & Welb. 160. Biscoe et al. vs. Jenkins et al. 5 Eng. 117.

There was no error in the judgment, of the court below, and it must be affirmed.