Christian rs. Penn.

and the said Nathaniel Duncan, by the style of Duncan and Christian, and received the said note so executed as aforesaid, in payment of and for the said tract of land so sold and conveyed to the said Nathaniel Duncan as aforesaid, of and from the said Nathaniel, fraudulently and without the knowledge or consent of your petioner, and the said defendant fraudulently and injuriously combining with the said Nathaniel, kept your petitioner in ignorance that your petitioner's name had been thus unauthorizedly used by the said Nathaniel, or that the said partnership name had been so used as aforesaid, and after the said note having been so executed as aforesaid, your petitioner hath been compelled to pay the said note to the said defendant, amounting to the sum of six hundred dollars and forty cents, which he, your petitioner, hath paid, and been compelled and held liable to pay, upon the said note so executed and accepted as aforesaid, the said Nathaniel Duncan being and having become insolvent and unable to pay the said sum of money in said note specified, which said note was executed in the said partnership name by the said Nathaniel, and received by the said defendant fraudulently and without the knowledge or consent of your petitioner."

The amendment contained two other counts, setting forth substantially the same cause of action, with the first count of the amendment.

The defendant pleaded the general issue-the Statute of Limitations and a former adjudication and recovery on the same note, between the same parties, in the Superior Court of Elbert county.

On the trial on the appeal, at April term, 1848, counsel for the defendant moved to reject the amendments, on the ground that they contained a new cause of action, and could not be allowed; which motion was granted by the Court, and to this decision, plaintiff by his counsel excepted, and alleges the same to be er

roneous.

W. H. UNDERWOOD, for plaintiff in error.

TRIPPE, for defendant.

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

The error assigned here, to the decision of the Court below, is, the rejection of the amendment offered to the plaintiff's declaration.

Christian vs. Penn.

[1.] We think the amendment ought to have been allowed, under the rule as it existed at Common Law, and more especially under the provisions of our Statute. By the Common Law rule, when a declaration shows a title or cause of action defectively set forth, it is amendable. Murphy vs. Lawrence, 2 Kelly's Reports, 260,-1.

The cause of action set forth in the plaintiff's original declaration, was the fraudulent procuring one of the co-partners to execute a note to the defendant,for the sum of four hundred dollars, whereby the plaintiff, as one of the partners, was compelled to pay it. Fraud on the part of the defendant, in procuring the signature of the copartnership name to the note, and damage resulting therefrom to the plaintiff as one of the partners, constitutes the cause of action, as set forth in the original counts of the declaration.

The original declaration furnished a cause of action by which to amend.

The amendment does not, as was supposed by the Court below, introduce a new cause of action, but alleges the fraud on the part of the defendant, in procuring the co-partnership signature to the note of four hundred dollars, for a different object, and in a different manner, so as to meet the proof on the trial, and avoid a variance between the allegata et probata.

The fraud in procuring the signature of the co-partnership name of Duncan and Christian to the note for four hundred dollars, whereby the plaintiff, as one of the partners, was compelled to pay it, is, substantially, the cause of action, in both the original and amended counts of the declaration.

The first section of the Act of 1818, declares "that in every case, where there is a good and legal cause of action, plainly and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants, or left at their most notorious place of abode, every other objection shall be on motion amended, without delay or additional costs." The second section of the Act declares, "that no non-suit shall be awarded, when the cause of action is substantially set forth in the declaration, for any formal variance between the allegation and proof." Prince's Dig. 442.

When a non-suit is prohibited, for any formal variance between the allegation and proof, the reason for allowing amendments, so as to make the record complete, and a protection to

Dickinson vs. McCamy.

the rights of parties, would seem to operate with increased force. Indeed, we are of the opinion, the Actof 1818 has not, in the general practice of our Courts, received that libéral construction in regard to amendments, which the Legislature intended. Our rules of practice were doubtless intended to prevent surprise or injustice, in making amendments to either declarations or answers, by requiring notice thereof, to the adverse party, or his attorney; and with this restriction, we think the Courts should be liberal in allowing amendments whenever there is a cause of action to amend by, as it facilitates the ends of justice, prevents delay and

costs.

Let the judgment of the Court below be reversed, and the cause reinstated, and the amendments offered be allowed.

No. 56. NELSON DICKINSON, plaintiff in error, vs. SAMUEL R. MCCAMY, defendant in error.

[1.] The Statute of Limitations is a wise and beneficial law, and instead of being viewed in an unfavorable light, as an unjust and discreditable defence, it should receive from the Courts of Justice such support as would make it what it was intended to be-a Statute of repose.

[2] If there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified admission of a present subsisting debt, which the party is liable to pay, and not merely that the debt was once due. [3.] An acknowledgment in the defendant's plea, that the signature to the note sued on, is his, accompanied with a protestation that the debt has long since been discharged, is not sufficient to take the case out of the Statute of Limita. tions.

Certiorari from Cherokee. Refused by Judge WRIGHT.

The facts are found in the opinion of the Court.

BROWN, for plaintiff in error.

AKIN, represented by PEEPLES, for defendant.

Dickinson vs. McCamy.

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

On the 28th day of March, 1848, Nelson Dickinson applied to His Honor, AUGUSTUS R. WRIGHT, Judge of the Cherokee Circuit, for a certiorari. The petition stated that one Samuel R. McCamy commenced suit against the petitioner, in the 818th district, G. M. on a promissory note under thirty dollars, dated 22d Feb. 1836, and payable to the plaintiff one day after date. That at the appearance term, payment, and the Statute of Limitations, were pleaded.. Judgment was rendered in the first instance, by the Justices, and finally by the Court and Jury, against the defendant, on the ground that his acknowledgment in his plea, that his signature to the note was genuine, took the case out of the operation of the Statute of Limitations, notwithstanding it was accompanied with a protestation, that the debt had been long since discharged, and although it appeared that more than six years had run, from the time the debt fell due, to the commencement of the suit. The record shows that the applicant had fully complied with the law, in this behalf enacted, by paying all costs which had accrued, and giving bond and security for the eventual condemnation money, and future costs. Judge Wright endorsed on the petition, "The above and foregoing petition for certiorari overruled, and the certiorari not granted."

It has been suggested by the counsel for the defendant in certiorari, in the argument, that the Court below refused this application, as it does all others of like character, on the ground that he will not interfere with the litigation in Justices' Courts, believing it best for the peace and quiet of the community, that it should terminate there. No such reason is assigned in the record, and we are bound to believe that none such exists. It is made the duty of the Judges of the Superior Courts, to grant certioraries whenever a proper case is presented. Justice to the Judge, therefore, compels us to repel this imputation. Like all other judicial officers, our brother has sworn to administer the law of the State the whole law, whether reasonable or unreasonable, expedient or inexpedient. And we doubt not he will do it to the best of his ability.

The point, then, to be decided, is, does the acknowledgment by the defendant, in his plea, that his signature to the note is gen

Dickinson vs. McCamy.

uine, take the case out of the Statute of Limitations, more than six years having elapsed before the suit was brought, after the note fell due, and notwithstanding the acknowledgment was accompanied with a protestation that the debt had been long since discharged?

Formerly, perhaps even this acknowledgment would have been deemed sufficient. Hellings vs. Shaw, 7 Taunt. 608. When I came to the bar, more than a quarter of a century ago, I recollect to have heard it said by one of the oldest practitioners, (Mr. Paine,) that a defendant could not open his mouth without taking the debt out of the Statute. And Lord Erskine said, the only safe course a defendant could take when his adversary sent a fishing witness, was to knock him down, for though he might be proceeded against for the assault, he retained the benefit of the Statute as regarded the debt.

[1.] Of late, however, the current of decisions is much more liberal in giving efficacy to this most benign measure. And the denial of the existence of the debt, is no longer tortured into an acknowledgment of a subsisting liability.

[2.] True a direct promise to pay, is not indispensably neces sary. Nor is any set form of words requisite to take the case out of the Statute. The acknowledgment, however, must admit that the debt continues due at the time of the acknowledgment. Bangs rs. Hall, 2 Pick. 368. French vs. Fragin, 7 J. J. Marsh. 425. Wetzell vs. Bussard, 11 Wheat, 310. Oliver vs. Gray, 1 Har. & Gill, 204. Furguson vs. Taylor, 1 Hayw. 20. Belles vs. Belles, 7 Hal. 339. Purdy vs. Austin, 3 Wend. 387.

In Clementson vs. Wilson, 8 Cranch, 72, Chief Justice Marshall, in delivering the opinion of the Court, says: "The Statute of Limitations is entitled to the same respect with other Statutes, and ought not to be explained away. In this case there is no promise, but a simple acknowledgment. This acknowledgment goes to the original justice of the account, but this is not enough. The Statute of Limitations was not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not, then, sufficient to take the case out of the act, that the claim should be proved or acknowledged to have been originally just; the acknowlment must go to the fact that it is still due."