Martin vs. Broach and others.

law to be this: that a debt, barred by the Statute of Litarians, may be revived by a new promise; that such promispress or implied; that an implied promise is created rear, positive and unqualified admission of the justness of the Abor demand sued for." "The acknowledgment which is suffitent to take the case out of the Statute of Limitations, is a clear, postive, unequivocal and determinate admission of the original justness of the particular debt, or demand sued for, and that the same is still due, or has not been paid. When such an acknowledgment is proved, to the satisfaction of the Jury, then, a new promise is implied, springing out of, and supported by, the original consideration, and the remedy revived."

The Jury found a verdict for the plaintiff; whereupon, counsel for the defendant moved the Court for a new trial.

1. For, that the verdict is contrary to law.

2. For, that it is contrary to evidence, and without sufficient evidence.

3. Because, the Jury have found, contrary to the charge of the Court, and in disregard of its instruction, as to what was sufficient to constitute a sufficient acknowledgment and promise, to take a demand without the operation of the Statute, where it had attached.

4. Because the Court erred in allowing plaintiff to introduce evidence of a new promise, by Martin, to take the case out of the Statute of Limitations, when there was no count or allegation in plaintiff's declaration, under which said evidence could be received.

5. Because the Court erred in charging the Jury, that they might find for the plaintiff, if they believed, from the evidence, that Martin had made a clear, positive, unequivocal and determinate admission of the original justness of the particular debt, or demand sued for; and that the same is still due, and had not been paid, when there was no evidence from which the Jury could draw such a conclusion, or inference, or ought to have been permitted to draw one.

Which motion for a new trial, was refused by the Court.

All of which rulings and decisions of the Court, were severally assigned to be erroneous.

I. L. HARRIS and C. B. COLE, for plaintiff in error.

Martin vs. Broach and others.

POWERS, BAILEY & BLAKE, for defendants.

I. L. HARRIS, for plaintiff in error, submitted the following points and authorities:

No privity at Common Law, between administratrix and executor. 1 Kelly, Hardwick's case. 2 Kelly, Broach vs. Walker.

For definition of privity, see Greenleaf's Ev. 220. 1 Taunt. 141. Tomlin's Law Dic. It consists in the transmission of same duties and powers.

Law The Acts of 1810 and 1821, do not change the common principle. This is a casus omissus, which the Court cannot supply. 1 Term R. 52. Dwarris on Statutes, 70.

Incompetency of Morris.

Error in admission of testimony, as to new promise, without a count in declaration, to support it. Aycourt vs. Cross, 3 Bing. 329, 365. 11 Eng. Common Law. Also, Miller vs. McIntire, 6 Peters, 64.

Error in not giving instructions prayed. Law vs. Morrel, 6 Wend. 268. Powers vs. McFerron, 2 Serg. & Rawle, 44. 7 Cranch, 506. Elling vs. Bank U. S. 11 Wheat. 75. Graham on New Trials, 270. Bradstreet vs. Huntington, 5 Peters, 402.

It is error to leave matter of law to the Jury, as matters of fact. 2 Serg. & Rawle, 415.

So, also, to submit a mixed question of law and fact to the Jury. Graham on New Trials, 270. Clarke vs. Dutcher, 9 Cowen,

674, 530.

So, also, to declare a question of law, to be a question of fact. U. S. vs. Carlton, 1 Gall. 400.

So, also, when there is no evidence to prove a particular fact, for the Court not so to instruct the Jury, when required. Greenleaf vs. Birth, 9 Peters, 292.

Examine the words relied on, to establish a promise-the word settle does not mean to pay, in any one of its senses.

No promise is made, to pay any fixed or determinate debt, or sum of money. This is essential, according to Stafford vs. Bryan, 3 Wend. Bell vs. Morrison, 1 Peters. Moore vs. Bank of Columbia, 2 Peters.

The case of Bell & Morrison, (1 Peters,) if law, and it is be

Martin vs. Broach and others.

level to to shows that the Court, throughout its charge, erred, submitted questions to the Jury, which should have bres decided by it.

S. T. BAILEY, for defendant, contended

1st. That under a fair and equitable construction of the Acts of 1810 and 1821, the plaintiff in error was properly made a party, and cited-Dwarris, 618, 704, 718, to 721. 6 B. & C. 178. 8 Ib. 104. 15 Serg. & Rawle, 39.

2d. That the promise proved, is sufficient to take the case out of the Statute of Limitations, and cited 4 Pick. 110. 3 McCord, 552. 4.Ib. 215. 2 Nott & McC. 60. 3 Conn. 370. 6 N. H. R. 367. 1 Esp. Ca. 435. 32 E. Com. Law, 366. 4 Mason, 457. 4 Porter, 223. 1 Har. & Gill, 204. 2 Green. Ev. §441. 5 C. Law, 245.

Whether the promise removes the bar, is a question for the Jury. 8 Eng. Com. Law, 318, 501. 32 Ib. 366. 11 Ib. 59. 2 T. R. 760. 3 N. H. R. 467. Chit. Cont. 818. 2 Greenleaf's Ev. §442.

3d. A new promise need not be pleaded. 3 Conn. R. 131. 1 Har. & Gill, 204. 4 Wash. C. C. 149. 3 Ib. 404. Chit. Cont 821, note.

C. B. COLE, in conclusion, for plaintiff in error, contended

1st. That the suit abated, and the Acts of 1810 and 1821, construed according to the meaning of their words, which are plain and unambiguous, do not authorize the plaintiff in error to be made a party, and cited-1 Term, 52. 6 Barn. & Cress. 475, 712. 7 Ib. 560. 4 Nev. & Man. 460. 8 B. & C. 104, 160. 10 Ib. 520. 17 Wend. 304. 21 Ib. 211. 7 Cranch, 52. Dwarris, 44. 6 Mod. 143. 1 Wash. C. C. R. 463.

2d. A casus omissus cannot be supplied by construction. Dwarris, 53. 1 Term, 52. 6 East, 514.

3d. The new promise was no where alleged, and the acknowledgment proved, was not sufficient, and cited-1 Peters, 362. 6 Ib. 151. 12 Ib. 332. 2 Saund. 127, and note c. 2 Greenl. Ev. 354. 3 Wend. 532. 9 Ib. 293. 2 Paige Ch. 45.

One item within the Statute, will not draw to it, items barred.

Martin vs. Broach and others.

8 Pick. 187. 6 Ib. 362. 5 Cranch, 15. 7 Ib. 350. Mason, 505. 1 Hill's S. C. R. 202. 2 Greenl. Ev. 360.

By the Court.-LUMPKIN, J. delivering the opinion.

The first question to be considered, is, was Mrs. Martin, as the administratrix generally, of the estate of John Martin, deceased, such a successor to George Walker, who qualified as executor upon the will of said deceased, but whose letters testamentary were revoked, and the will set aside, on account of the birth of a posthumous child, as that she could be made a party to the suit, pending against Walker, as executor, at the instance of the estate of George Broach, deceased?

It is clear, that this could not be done at Common Law, or under the Statutes of 17 Car. II, or, 1 Jac. II, for want of privity of representation. Do the Acts of 1810 or 1821, either or both of them, make provision for this case?

[1] It is suggested, by counsel for the plaintiff in error, that these Acts contravene the 17th section of the 1st article of the Constitution of the State, which inhibits the passage of any law, or ordinance, containing any matter different from what is expressed in the title thereof. Prince, 904. The origin and his tory of this singular provision, are given in the case of The Mayor and Aldermen of the City of Savannah, and others, vs. The State of Georgia, &c. 4 Georgia R. 26. This clause does not require that the title should contain a synopsis of the Law, but that the Act [2.] should contain no matter variant from the title. Now, the titles to each of these Statutes, after enumerating certain objects for which they were passed, adds, “ And for other purposes therein mentioned." This was sufficient to prevent surprise-to induce the members, either to call for the reading of the whole of the bill, or to look into it, during its progress through the Legislature. Having disposed of this preliminary objection, we will proceed to an examination of the Statutes.

[3.] The Act of 1810, declares that "the Court of Ordinary shall have power and authority, upon complaint made, and cause shown, by any security of any administrator or guardian, that his principal is mismanaging his estate, upon which he is the administrator or guardian, to pass an order requiring such administrator or guardian, to show cause, if any they have, at the next term,

Martin vs. Broach and others.

security should not be discharged from his securityship, administrator or guardian, compelled to give new seay, or their administration or guardianship be revoked, as to the said Court shall seem expedient; and upon the revocation of such administration, or upon the revocation of any letters testamentary, as provided by law, and granting administration, de bonis non, suits brought by, or against, the former administrator, shall not, for this cause, be abated; but the removal of such administrator or executor, being suggested on record, a scire facias may issue, to make such administrator, de bonis non, a party, at any time after the granting of such letters, de bonis non. Prince, 241. The Act of 1821, is declaratory of the Act of 1810, doubts having arisen as to its proper construction. It says "That from and after the passage of this Act, when the Court of Ordinary shall know, or be informed that any such guardian, executor or administrator, shall waste, or in any manner mismanage the estate of such orphan, or deceased person, or does not take due care of the education and maintenance of such orphan, or deceased person (!!!) according to his, her or their circumstances; or where such guardian, executor or administrator, or his, her or their securities, are likely to become insolvent; or where such executor, administrator or guardian, shall fail to make returns within the terms prescribed by law-particularly, where no inventory or appraisement shall have been made and returned, in terms of the law-said Court are hereby required to order a rule to be served on such guardian, executor or administrator, so in default, returnable to the next regular term of said Court after the passing the same; and upon return of said rule being served, the Court shall proceed to investigate all the actings and doings of said guardian, executor or administrator, (as the case may be,) and may, and are hereby authorised and empowered to revoke the trust confided to him, her or them, or pass such other, or further order, as said Court may think expedient and fit for the better managing and securing such estate, and educating and maintaining such orphan; and upon the revocation of such letters testamentary, letters of administratorship, or guardianship, writs, by or against either, shall not, for this cause, abate; but the removal being suggested of record, a scire facias may issue, to make the successor of such removed person a party, at any time after the appointment and qualification." Prince, 245, '6.