Gilkyson v. Larue

Per Curiam The loss of this debt is due to the court which opened the judgment, without prescribing as a condition of its interference that the defendant should not plead the Statute of Limitations. According to the testimony of Mr M’Dowell, the allegation on which the court proceeded was that the judgment ought not to have been for interest, and this accompanied by an express disclaimer of a design to plead the statute; yet the judgr ment was opened generally ; the statute has been pleaded; and a fair debt has been lost by it. The Courts of Common Pleas seem, to think they have no power to impose terms, or that it is not their business to exercise it; whereas it is clear that their power is discretionary, and they ought to prescribe the issue so as to draw into contest no more than the matters alleged for ground of defence in the affidavit. On the pleadings, however, the only question before us is whether there was evidence of a subsequent promise to go to the jury. The acknowledgment of a debt is evidence of a promise; but it ought to be plain, unambiguous, [218] express, and so distinct and palpable in its extent and form as to preclude hesitation. But the acknowledgment here was only inferential, if indeed it could be inferred from an agreement without consideration not to plead the statute, which however was no disclaimer of all other grounds of defence. The defendant’s disclaimer of an intention to plead the statute after the suit was brought, accompanied with an allegation that the judgment was for too much, would come too late for the purpose of the action, even if it were evidence of a subsequent promise; for it would fail to prove the existence of a cause of action at the suing out of the writ. We cannot say, therefore, that the court erred in excluding the evidence. Judgment affirmed.