Green v. Hall

• Court: Georgia Supreme Court
• Writing for the Court: WARNER, C. J
• Citation: Green v. Hall, 36 Ga. 538 (Ga. 1867)
• Decision Date: 31 December 1867
• Parties: MOSES P. GREEN, plaintiff in error. v. BENJAMIN F. HALL, administrator, de bonis non, cum testamento annexo of WILLIAM FULCHER, deceased, defendant in error.

36 Ga. 538

MOSES P. GREEN, plaintiff in error. v. BENJAMIN F. HALL, administrator, de bonis non, cum testamento annexo of WILLIAM FULCHER, deceased, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, Dec. Term, 1867.)

Complaint on Note. Statute of Limitations. Decied by Judge Augustus Reese. Richmond Superior Court. April Term, 1867.

This was complaint by Green against Hall in his said representative capacity, on the following promissory note: "$846.77. October 10th, 1851.

One day after date, I promise to pay to M. P. Green, or bearer, the sum of Eight Hundred and Forty-six Dollars and Seventy-seven cents, in renewal of a note given by William Fulcher.

Ann C. Fulcher,

Executrix."

On which note was this endorsement:

"10th December, 1855.—Received of James A. Templeton for Ann C. Fulcher, executrix on the estate of William Fulcher, deceased, the sum of Two Hundred and Forty-four Dollars and Fifty-six cents.

M. P. Green."

At December Term, 1865, it was taken to the Superior Court by consent appeal. Subsequently at October Term, 1866, plaintiff's declaration was amended by adding a count, declaring that Ann C. Fulcher, as executrix of William Fulcher, deceased, was indebted to plaintiff $846.77, on 10th October, 1851, for money had and received for the use and benefit of the estate of said deceased.

And again at January Term, 1867, plaintiff again amended *his declaration by alleging that said defendant in error, in his said representative capacity, was indebted to him, &c, on the following note:

"January 1st, 1843.One day after date, I promise to pay Jesse P. Green, or bearer, Five Hundred and Ninety-three Dollars and Thirty-eight Cents, for value received.

William Fulcher."On this last note was a credit for $75, dated 18th October, 1844.

The defendant plead non assumpsit; that the first note was the private undertaking of Ann C. Fulcher, and.did not bind William Fulcher's estate; as to the last note, payment and as to the open account and both notes, the statutes of limitations applicable to each.

Before the jury was empanelled, by consent of counsel, to save time, a motion was made to exclude, the note sued on from the jury, because it was barred by the lapse of time, there being no new promise in writing, as required by the Act of 1854.

The Court sustained the motion and ordered a verdict for the defendant.

This decision and order are assigned as error.

Frank H. Miller, for plaintiff in error.

John T. Shewmake, for defendant in error.

WARNER, C. J.

The error assigned to the judgment of the Court below...