
    John H. Ellis et al v. Larkin F. Sanders.
    Limitation, Statutes of — New Promise.
    A new promise made within five years before the commencing of an action will take the case out of the statute of limitations.
    APPEAL FROM CARROLL CIRCUIT COURT.
    July 6, 1869.
   Opinion of the Court by

Judge Hardin:

It is not deemed necessary to decide whether independent of the testimony of the witness Kruttz, the appellee’s claims were barred by limitation, for Kruttz’s testimony, if credited, establishes a re-acknowledgement of the claims by Ellis, and substantially a new promise to pay them within less than five years before this suit was brought.

There is a contrariety of evidence as to the character of Kruttz, but the preponderance of the evidence seems to be in favor of his credibility. He is moreover corroborated by the testimony of other witnesses in several important particulars.

The judgment apparently based on the last commissioner’s report and the evidence, seems to us to be correct, although from the peculiar nature of the transactions between the appellee and Ellis their solution is involved in difficulties, which were increased no doubt by the death of Ellis without a final settlement between the parties themselves.

Winslow, for appellants.

Drane, for appellee.

Wherefore, the judgment is affirmed.  