
    CASE 41 — PETITION ORDINARY
    SEPTEMBER 16.
    Cecil vs. Welch.
    APPEAL FROM GAREARD CIRCUIT COURT.
    On a promise to pay “as soon as able," a judgment and execution will be the best test of the defendant’s ability to pay. If they prove his ability, he ought to pay; and if they fail, he cannot be prejudiced by the judgment.
    S. Turner, For Appellant,
    CITED—
    5 /. /. Mar., 255; Head vs. Manners.
    
    1 Bibb, 443; Harrison vs. Hanley.
    
    2 Bibb, 285 ; Gray vs. Lewridge.
    
    Dunlap, For Appellees,
    CITED—
    
      Hardin’s Reps., 301.
    1 Bibb, 443.
   JUDGE ROBERTSON

delivered the opinion of the court.

It seems to this court that the testimony authorized the jury to find that the appellant, within five years before the institution of this action, assumed to pay, as soon as able, the appellee’s medical account as exhibited; and after the long lapse of time which intervened, the action was prima facie maintainable without either plea of inability or extraneous proof of it. Judgment and execution will be the best test of his ability to pay. If they prove his ability, he ought to pay; and if they fail, he cannot be prejudiced by the judgment, which is therefore affirmed.  