The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-06-12

In the circuit Court of the United States
for the Southern District of Mississippi
Mamie w Didlake ct al.
Ann /. Robb ct al.


Mamie w Didlake ct alp
vs..
Ann L. Robb ct al.
This action is brought by the plaintiff
against the defendants TO recover the
amount OF five prommissory notes, each lot
the sum of $3.50 y, due and payable on
the first days of February, lS6S, 1852 1871
1871 and 1872, and each bearing interest
from the first day of February, 1867, the
day upon which it is to be presumed they
were executed, no date being given. Among
other pleas interpOsed by the defendants IS
one. stated as the second, which AYERS "A
want of a sufficient consideration TO sustain
said promises, and alleges that they were
given in renewal of five notes executed by
John III. Robb, the late husband of Ann l..
Robb, and father of the other defendants, TO
the ancestor of the plaintiff, Mamie w.
Didlakc, dated the 18th day of september
1889. and due and payable as follows: One
for 50 6I3 due LIST February, lS43, one Tor
50. Az due LIST February, 1912, one for 81
1873, due February l, lS4l, one for $2,4'4'
dated February 1, 1899, and due let FebTu-
ary 1872 and one for $500. dated sept. u
lS49 and due four months after date Ihat
there were sundry credits endorsed on all
| these notes, except the note for $2,4I4 que
| February /, 1912. That said John ii. Robb
! died intestate, in the year 1852 and letters
of administration upon his estate were
| granted by the Probate Court of Washing
| ton county, in May, 1858, TO the defendant,
| Ann l.. Robb. That all of these notes, eX-
cent the note of $500, upon which about
| $500 had been paid i'm 1850, were barred by
| the statute of Limitation before the death
! of said John III. Robb, and that all of them
were barred long before the execution OF
! the notes sued on. That the notes sued on
were executed under the mistake, superln-
\ duced by the representations OF Ilalntlns
| that they were binding obligations upon
| the estate of said John III. Robb. To this
plea the plaintiff demurred, and this de-
murrer raises the question as to whether or
| not the matter alleged in said plea consti-
| tutes a good defense TO the plaintiffs action.
| Its admitted that there must have been a
| sufficient legal consideration upon which
| the promises were made 10 enable the plain
| tiff TO recover; that is, some benefit TO the
/ pI OmisoT, or some injury 70 the promisee.
! But it is insisted by plaintiffs counsel, that
| the surrender of the old notes was salts
| faction OF them, and hence that there was
| a good consideration 10 support the notes
! sued on. The authorities hold that where a
| party has owed Udttd debt which has be-
| come barred by statute of limitations, or
! from which he has been discharged by a
| decree i'm bankruptcy, new promise 10
/ will be binding, both OF these detences be-
| ing personal and only available upon plea.
| But ia such cases the debt, from which the
| promisor may upon plea discharge him
| self, must have been Udtfd one for which
| he would have been liable but for the plea
| otherwise the promise IS entirely Volun-
tary and of no binding force. The heirs
1
pay the debt of their ancestor, whilst the
| estate, both real and personal, is liable II
| proceeded against in the proper manner
and within the prescribed time. This the
holder of the notes executed by the dece-
| dent neglected 30 do until the liability was
| eXtinguished by lapse of time aud the
| statute Of limitations. 1t is now well set
I tied in this State that debt barred by the
| statute of limitations at the death OF "A de
| cedent, cannot be revived by a promise
| made by his personal representative, and
upon principle n debt so barred would not
be binding upon creditors holding subsist-
| ing debts, or upon the legatees or distribu-
| tees. The heir at-Iaw Immediately becomes
| invested with the title TO the real estate,
| subject only to the debts of the ancestor for
| such balance rs may remain after the eX-
haustion of the personal assets; and il the
personal estate is not liable the real estate
| so descended cannot be reached.
/. -
| From "A careful consideration of the mat
| ter stated in the plea, and the principles OF
! law invoked on both sides, j am convinced
/ that the promises made by the defendants
| could not, by any possibility, secure to them
any benefit whatever. They are promises
| which they were under no legal or moral
| obligation to make, and which the plaintiff
| had no legal or moral right to exact, and
! for the non compliance with which the
| plaintiff has no right to complain; and
consequently that there was in law no SUI
| ticient consideration to sustain the promises
| made. The plea presents good defense TO
! the action, and the demurrer thereto must
be overruled. To hold otherwise would be
to say that these defendants are nOn-liable
| TO pay $2l,7S OF for debt of their ances-
tor of only $206 at the time of his death
binding upon his estate, and which had
ceased to have any binding force against
his estate long before these promises were
made, and for alleged debts, none of which
ever did constitute an obligation upon
either of the defendants personally.
i have not had time to collate and refer
to the authorities which sustain these con-
illusions, nor do deem it necessary, as they
result from an application of long estab-
lished principles of law to the facts stated
in the plea. II. A. HILL,
II1lara Of