
    KING v. RIDDLE.
    
      J?resent....Jfll the-Judges*'
    
    deeln'fe1 ¿üod evidence to of^the'statute of limitations, A discharge SESttw’S the District of no'lrar'to ah ¿choir. .
    ERROR to the Circuit Court for the District of Columbia, sitting at Alexandria.
    Riddle brought an action of assumpsit in the' court below against King. The declaration contained a. gqneral count for money paid, laid; outand expended by the Plaintiff for the use of the Defendankr-and a special count which stated that the Defendant in the year 1798 ^'e^nS taken in execution upon judgments of tfte county Court of Fairfax at the suit of Fosters and May, gave a prison-liounds-bond, with sureties, which bond he for. feited, and judgment was obtained against his sureties. That the Plaintiff (who was not bound in the bond) did afterwards, at the request, of the Defendant, advance, settle and- pay the one sixth part of the judgment, amounting to 350 dollars and 52 cents, and that the Defendant in consideration thereof undertook, &c. .
    The Defendant pleaded non assumpsit, and non assympsit infra quinqué annos, Spc. upon which, issues-were joined; and upon the trial the Defendant took a bill of. exceptions to the refusal of the court to instruct the .jury that the evidence was not sufficient in law to enable the Plaintiff to recover in this action.'
    The evidence stated in the bill of exceptions was as follows:
    
      1. A paper signed and sealed by the Defendant op the 15th-of July, 1804, reciting that the Plaintiff and others had become his sureties for a large debt due iq Mr. John Foster, and having. become accountable, had paid the debt, and he, the.Defendant, being desirous to, secure them as far as he could, assigned to Thomas Vowell,. one of his sureties, certain bonds in trust tp collect the money and distribute it equally among them.
    2, The testimony of the said Thomas Vowell that ha had never received any thing upon those bonds.
    
      .. 8. The testimony of John M‘ÍDo,nald, that some time in the summer. of. 1799, he heard the Defendant say he owed tiie Plaintiff á sum of money, but hesdid not state the amount, nor upon what account he owed it.
    .4. An abstract of the judgment against the sureties amounting to 2,103-dollars and 12 cents j and
    5. A receipt at the bottom thereof signed by Fosters and May, dated September 18th, 1799, as follows: « The above sum of 2,103 dollars and 12 cents has been discharged by the negotiable notes of John. Harper, William Harper, Thomas Vo well, jr. Samuel Harper and Joshua Riddle, at thirty days, and the cash of Charles Harper,.which notes, when paid, W'ill stand in full payment of the above judgment and costs,”
    All the above framed persons, except Joshua. Riddle, the Plaintiff, were bound in the bond. ,
    The. writ in the present suit wás issued on. the 1st of July, 1809.
    Tine Defendant offered in evidence a copy of bis certificate of discharge from imprisonment, dated August .12,1805, under the act of Congress for the relief of in; solvent debtors within the,District of Columbian Phi. 6, p. 294.
    The verdict and judgmefrt beihg against the Defendant, he brought his writ of error.
    E. I. Lee, for the Plaintiff in error, contended,
    1, That the Plaintiff’s evidence did not maintain his action.
    . If he had any cause of action it was upon the sealed instrument. There was no evidence of. the request of the Defendant to the Plaintiff to pay the money, and he Was under no legal obligation to pay it. He was not a party to the judgment on the prison-bounds-bond. The receipt states the judgment to he paid by the notes of the Plaintiff and others; but it does not appear that the Plaintiff has ever paid this note.
    
      2. There is no evidence ,to take the case out of the statute of limitations, except the testimony of McDonald, which is too vague and indefinite.
    3. The Defendant having been discharged under the insolvent act, no suit can be maintained against him without showing that he has acquired new property since his discharge.
    Swann, contra.
    
    
      1. The Plaintiff was no party to the sealed instrument. He is only named in the recital. It contained no contract m the part of the Defendant to pay the Plaintiff. But it is evidence from which the jury might infer that the Plaintiff had paid the money at his request. it is true there was no positive evidence that the, note had been paid, but there aré circumstances from which the jury might infer it.
    2. The recital in the instrument acknowledging the debt was on the 15th of July, 1804, and the suit , was brought upon the 1st of July, 1809: so that 5 years had . not elapsed. ,
    3. The discharge under the insolvent law,, only discharges the person — it is no bar to an action.
    
      March 4th....
    
    
      All the Judges (except Duvall, j.J being present,
    
   Marshall, Ch. J.

delivered the opinion of the court to the following effect:

In this case the whole evidence is spread upon the record by the bill of exceptions, and the Court below refused to instruct the jury (as requested by the Defendant) that it was not sufficient in law to enable the Plaintiff to recover in this action.

If the Court ought to have given this instruction, their refusal'is certainly error.

The evidence shows that a note was given, qr money paid by the idaintiff for the uSe of the Defendant ) but it is, objected tliat it was not paid at the request of the Defendant. If the Plaintiff , was not bound ,io pay it, and if if was paid without the request of the Defendant, it is certain that the Plaintiff is not entitled to recover. But the Court thinks that therfecital in the deed of as, sigmnent is evidence from which the jury might infer a request.

The Court is also of opinion that the recital in the dee.d is sufficient to take the case out of the statute of limitations. Although the Court is not willing to. extend the. effect of casual or accidental expressions farther than it has bepn, to take a case out of that statute, and although the Court might be of opinion that the cases on that point, have gone too far, yet this is not a casual or incautious expression: the deed admits the debt to be due on the 15th of July? 1804, and five years had not afterwards elapsed before the suit was brought.

. Then it is objected that there is no evidence of the payment of the; money by the Plaintiff; but the Court thinks that the recital of the deed is evidence from which the jury might infer the..payment.

There was no error respecting the discharge tatter the insolvent act. It was only a discharge of the person, and could not affect the judgment.

Judgment affirmed.  