
    T. C. Butler v. Knott & Dunham.
    Bill of Exchange — Limitation—Subsequent Promise Must Be Alleged.
    When an action on a bill of exchange is barred by limitation, which is pleaded, and a subsequent promise to pay is relied on it must he alleged, and the statement that one deems himself bound for the debt cannot be construed to be an unconditional promise to pay.
    APPEAL PROM JEPPERSON CIRCUIT COURT.
    September 30, 1867.
   Opinion op the Court by

Jud&e Peters :

It does not appear in the record what propositions of law was submitted to the jury as applicable, to the facts proved, nor that any evidence was offered by appellant that was objected to or excluded by the court; consequently, if the judgment can be reversed, it must be upon the sole ground that the same is clearly against the weight of evidence. It is not certified in so many words that the bill of exceptions contains all the evidence introduced on the trial; but if, by a liberal interpretation thereof, it be conceded that it is in substance so sated, still we do not feel authorized to disturb the verdict. The proof does not show that appellees, or either of them, undertook or promised to pay the lebt within five, years after its maturity, and the statute of limitations is pleaded and relied upon by both of them. Brown proves that Knott stated to him that he had paid over to Dunham the one-half of the debt, which he intended to be applied as a payment pro tanto on said debt, and as “he deemed he was liable and bound” for the amount of the bill, “he would not make any defense to this action.” This cannot be construed as an unconditional and direct promise to pay the debt, nor was it so regarded by Brown, because the action is brought on the bill of exchange, and a subsequent promise to pay the debt is not alleged. But the whole sentence is the expression by Knott of his belief that he was still, bound to pay the debt, and while he continued in that belief, he would make no defense to the action. But after he became better informed on the subject’ he resolved upon a different course of conduct, as the result proved, for he did defend the action, and availed himself of all the defenses that he believed he could make effectual. And having succeeded, we perceive no error prejudicial to appellants, and the judgment must be affirmed.  