The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-14

action is barred at all, il must be by reason
of other laws In force at the time of the pas
sage of the Code, Those laws not only con-
tain the periods Of limitation applicable to
all cases arising under them, but they also
define the exceptions and savings allowed,
and the circumstances under which their
operation is to DO arrested by virtue of new
promises or Acknowledgements. These are q
part of the laws then in force TO which all
cases in which the right of action or of en-
try, accrued before tho Code should take of
feet, are declared to bo subject. VI tAt
We do not question the competency Of the
Legislature to change, the rule of evidence,
and to establish new rule as to what shall
be regarded as sufficient proof of u new
promise or acknowledgement to take
case out of the operation of the
statute of limitations, and to apply
each new rule to cases arising before its
adoption. Had the twenty-frst article
of the code already quoted, provided, that
no new promise, not In writing should
be evidence whereby to take case out Of
the operation of the statute elimination OF
this State, generally such enactment would
have applied to all promises made before its
passage, and would have made 1t necessary
for the proof or acknowledgement to conform
to the law in force at the time of the trial,
Such has been the uniform constitution in
England, of the Stat. 8, Geo. Nv, commonly
known as Lord Tentelden's act, and such
has been the Interpretation given to our act
of 1874, Briscoe VS., Ankitell, % Miss Sol.
Such legislation does not act upon the origi-
nal contract, to impair its obligation, nor
does it divest any vested right. Itrelates
only to the character of proof required toe
tablish collateral fact, and to show that by
the consent Of the party the existence OF the
liability upon the contract is to be continued
beyond the period at which, by force of the
act for the limitation of actions, all remedy
upon it would otherwise have ceased.
But inasniuch as the twenty-frst article
only requires the written evidence in cases
where the new promiseis reliedupon to take
the case out of the operation of the provisions
of the act of 1857, and inasmuch as the TWEEN
ty-eighth article expressly declares that all
cases where the right OF action accrued be-
fore that act,took effect, should be subject to
the laws previously in force, we are obliged
to hold that the present case is governed By
the act of 1874, and that the promise proved
to have been made in 1865, Is sufficient to
take the case out of the operation of that
act, which is the one pleaded and relied on as
opposing the bar to the maintenance of the
present action. 1i
It follows from these views that the in
structions given in the court below We're
correct, and that the final instruction asked
by the defendant was properly refused. The
judgment upon the demurrers was also cor
rect for the same reasons-and also for the
additional reason that in setting forth the
new promise in pleading, it would not be
necessary to aver that it was in writing,
even if the law required it to be SO. 1t would
be sufficient if the written promise We're
proved at the trial. Such, at least, is the
settled rule in analogous cases arising under
the statute of frauds AsT NV n
The Judgment Of the court below will be
affirmed 3 #a# If al4