This action was to recover a sum of money advanced to a niece of defendant, at his request.
The defenses are limitation, the statute of frauds, and a general denial.
The account runs from thirteenth December, 1859, to twenty-fifth October, 1860, calling for $650 81.
The petition was filed tenth of April, 1867.
The time from second of March, 1861, to second of September, *521866, being five years, and six months, is not to be computed in the act of limitation. (Ordinance of 1866, lío. 11. $ 6.) The date of the first article charged' in the account is thirteenth December, 1859, and the .petition was filed tenth of April, 1867. From thirteenth December, 1859, to tenth of April, 1867, is seven years, three months and eighteen days; and deducting the five years and six months, there remains one year, nine months and eighteen days. This disposes of the act of limitation of two years.
The statute of frauds (Art. 3875), which provides that “no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt of another person, unless the promise shall be in writing,” is also relied on. But the testimony in the case is that the person “ to whom the articles in the account stated were delivered, was sent to Mobile to school by defendant, who was to pay her necessary expenses of education, and that the money was advanced and paid out by her in her education.” This would make the account the defendant’s own debt, and not the debt of another, and the statute of frauds has as little effect in the case as the act of limitation.
The testimony is conclusive and the jury could not have found otherwise than as set forth in their verdict,
The account was due prior to the first day of January, 1861, and draws interest from that date. (Art. 3940.)
We cannot presume that the plaintiff in error, even without the advice of his distinguished counsel, had such views of arithmetic, law or justice, as to expect a reversal of the judgment. It is clearly a case of delay, and the judgment is affirmed with damages.
Affirmed.