Lamkin v. Nye

Citations

• 43 Miss. 241

Syllabus

<p>1 Peeadins — Pbactice.—Under the Revised Code, p. 491, sec. IX, litigants are not held to the strict technical rules of pleading. All that is required is to pfcate, in ordinary and concise language, the facts constituting a substantial ground of action, or of defense.</p> <p>2. Limitations — Days oe Gbace. — In computing time on a writing obligatory (other than a promissory note under seal), days of grace will not be counted or allowed.</p> <p>3. Commencement of Suit- — The commencement of the action within the meaning' of the statute, is the suing out of a writ and placing it in the hands of the officer for service, and not the filing of the declaration.</p> <p>4. “ New Peomise ” Undeb the Act of 1844. — Under the statute of 1844, the new promise, to take the case out of the bar of the statute, mustbe in writing, or, if not in writing, “ the very claim ” mustbe presented and acknowledged to be due, and accordingly, the holder of the claim must either produce it or have it ready to produce. The act to he done by him is assimilated to a “ tender ” by a debtor to his creditor.</p> <p>5. Modification of the Act of 1844. — The act of 1857 repeals so much of the act of 1844 as permitted a verbal promise, under any circumstances, to waive the bar or revive a cause of action.</p> <p>6. Assignment, etc., and effect thereof. — If the writing assigned, he “negotiable paper,” as defined by the law merchant, the endorsee incurs the liability incident to. that form of contract: as to other choses in action assigned, the mere transfer has no other effect than to pass the legal title, so as to enable the assignee to sue at law.</p>