
    Turner v. Brown.
    Quere, whether the acknowledgment of the justice of a claim constitutes a cause of action, independent of the original promise upon which the statute would run subsequent to the filing of the original petition, and until the acknowledgment was introduced in pleading; or, in other words, whether the amendments setting up the acknowledgment are to bo regarded as amendments of the original petition, or as the institution of suit on the acknowledgment, as the sole and independent cause of action.
    Where the plaintiff amended by alleging an acknowledgment of the justice of the claim within four years before the institution of tiie suit, but more than four years before the filing of the amendment, it was held that he might amend a second time, by alleging the acknowledgment. to hare been made within four years before the filing of the first amendment, although more than four years before the second amendment; and that the petition, as amended, was good. (Note (¡7.)
    Where an acknowledgment of the justice of the claim sued on was set up by way of amendment, to take tiie case out of the statute: Held, That it was not necessary to serve the defendant with notice thereof, lie having been regularly cited in the first instance.
    Appeal from Brazoria. On the 15th day of October, 1849, the appellant brought suit against the appellee, on a promissory note, duo on the 2d day of December, 1840, At the Ball Term and on the 7th day of November, 1849, the plaintiff amended his petition, alleging that on or about the 21st day of October, 1845, the defendant, by his indorsement in writing signed by him, acknowledged the justice of 'the debt. Subsequently, at the same Term, the defendant answered by a general demurrer and a general denial. Afterwards, the plaintiff amended by averring that the note had been mislaid previous to the institution of the suit., wherefore it could not be produced upon the trial, but the plaintiff would prove its contents. At the Ball Term, 1850, and on the 12th day of December of that term, the plaintiff further amended his petition, alleging that the defendant by his written indorsement on the. back of the note described in the original petition, signed by him on tiie 25th day of September, 184C, acknowledged the justice of the demand ; a copy of which acknowledgment was appended to the petition, and was as follows:
    “I owe the within amount, and it is a just and true claim. September 25th, 1840.
    (Signed) “E. E. Brown.”
    The defendant excepted to tiie last amended petition, on the ground—
    1st. That it set forth a new cause of ¿ction, which was barred by the statute of limitations previous to the filing of the amendment.
    2d. That no citation was issued upon the amended petition.
    The court sustained tiie exceptions to the original and amended petition, and dismissed tiie ease.
    J. B. Jones and P. McGreal, for appellant.
   Wheeler, J.

In dismissing tiie ease tiie court doubtless acted on tiie supposition that the new promise constituted the sole cause of action; that suit was not brought upon it until the filing of tiie last amended petition; and that four years from its date having then elapsed, it was barred by the statute of limitations.

Whether the new promise constituted a cause of action independent of tiie original promise' upon which tiie statute would run subsequent to tiie filing of the original petition, and until the new promise was introduced in pleading; or, in other words, whether the amendments setting up the. new promise are to be regarded as amendments of the original petition, or as the institution of tiie suit on the new promise as tiie sole and independent cause of action, — is a question on which we might not concur in opinion, and which it is not necessary in the present ease to consider. Bor we think it clear that tiie last amendment, filed on tiie 12th day of December, 1850, is to be regarded as an amendment of tiie amended petition, filed on tiie 7th day of November, 1849. Both set up the new promise. In that first filed, its date and precise terms were not accurately described; hut the inaccuracies were corrected by the amendment last filed. It cannot be denied that it is the office oí an amendment to correct a misdescription of the cause of action, as well in respect to dates as in any other respect. This was the correction made by the last amendment. When the new promise was first set forth by the plaintiff by his amendment filed on the 7th day of November, 1849, four years from its date had notelapsed. The new promise, though not then correctly described, was then declared on. This and the subsequent amendment in which the new promise was accurately described, are to be taken as one pleading, setting forth and relying upon the same subject-matter. Consequently, they constitute a suit as to that subject-matter from the date of the filing of the first amendment. The new promise, when declared on, was not barred by the statute. This ground of objection to the petition, therefore, cannot be maintained.

Hote 07. — Henderson v. Kissam, S T., 46; Greenwood v. Anderson, 8 T., 225; Pridgin v. Strickland, 8 T.,427; Bell v. McDonald, 9 T., 378; Tousey v. Butler, 9 T.,525; Tryon v. Butler, 9 T.,653; Williams v. Randon, ID T., 74; Kinney v. Lee, 10 T., 155; Pridgen v. McLean, 12 T., 420; Whitehead v. Herron, 15 T., 127; Hopkins v. Wright, 17 T., 30; Chapman v. Sneed, 17 T„ 428; Thouve-nin v. Lea, 20 T., 012; Usher v. Skidmore, 28 T.. 016; Furlow u Miller, 30 T., 28; King v. Good-eon, 42 T., 81; King v. Goodson, 42 T., 162; Mellhenny v. Lee, 43 T., 205.

The remaining ground of exception is likewise untenable. There was no necessity of a citation to the defendant, who was already in court, by the service of process upon him.

We are of opinion that the court erred in sustaining tlie exceptions to the petition; and that the judgment be reversed, and the cause remanded for further proceedings.

Judgment reversed.  