Dobson v. Dickson

Bleckley, Justice. 1. There was no material fact in the rejected testimony of the plaintiff (whose interrogatories were excluded on the ground that the other party was dead) except as to what the deceased had done, or spoken, or written. Was the plaintiff competent to prove these things It is said that because his information was acquired before he purchased the note and while he was wholly disinterested, he was competent — that a subsequent interest, and his being a party to the suit, would not disqualify him. Surely this position is not tenable. If a person voluntarily destroys his competency as a witness, he himself cannot complain. But in [644] fact the plaintiff has the very same competency now which he had before. His original competency was not to testify for himself against a dead man’s estate, but for another, and he can still testify for others. He has no less competency now to testify in his own behalf than he had in the beginning. The death of his adversary has affected him just as such a casualty affects everybody else who comes as a creditor to coerce payment by an administrator. Code, §3854. 2. The note on its face was barred by the act of 1869. Of this there can be no doubt. Was there a new promise after June 1st, 1865 ? This depends on whether any credit later than that date was in the handwriting of the debtor, and if not, whether a promise to pay this identical note can be found in, or inferred from, his letters, or any of them. The note, with the credits thereon, and the letters, were all the evidence before the jury, the plaintiff’s evidence by interrogatories having been ruled out. Grant that the plaintiff was competent to prove handwriting, still he did not do it. He could go no further than to say that the entry of a certain credit was either by the debtor, or by the payee with his authority. Here he was on ground to which his competency as a witness did not extend; but had it been otherwise, there is no proof that there was any authority in writing, and if it were only in parol, it would be insufficient; for a credit entered by the payee under that kind of authority would be exposed to all the evils which the statute intended to remedy by requiring new promises to be in writing. Code, §2934. If the creditor could be the debtor’s' agent to raise a new promise by entering a credit, his authority would have to be in writing; and if in writing, and sufficiently definite as to the debt, etc., the authority itself would amount to a new promise, whether the credit was entered in pursuance of it or not. Hammond's adm'r. vs. Carter & Shelton, this term. 3. The jury, doubtless, scrutinized the letters, and as their verdict shows, they did not gather any new promise from [645] them which could be identified as referring to this debt. The letters do not specify any particular debt whatever, and they seem to us. too vague and indefinite in that respect to warrant a recovery on the antiquated demand. 55 Ga., 264. When the suit was brought the note had been due more than twenty-nine years, and the general statute of limitations, to say nothing of the act of 1869, gave but twenty years for suit on such an instrument. Judgment affirmed.