Brown v. Edes , 37 Me. 318 ( 1853 )

Wells, J.

— The plaintiff had an account against the defendants, which was settled on the 5th of November, 1842. The sum of fifty-four dollars and eighty cents was allowed to them in the settlement as a payment made by them, when it should have been credited to Wilkinson Edes. There are no facts disclosed, which show any fraud on their part in >the settlement, by which the plea of the statute of limitations could be avoided.

The action being barred by the statute, there must be an acknowledgment of the debt, or a promise to pay it, made in writing. E. S., c. 146, § 19. In the memorandum made by Lovering, he does not admit any indebtedness, nor make any promise to pay the debt. The defendant Edes, says, that “ Lovering & Edes, never claimed or owned any part of the within lumber, nor any exemption from liabilities on account of time.” The statement, that the defendants did not own the lumber, is not an admission that the debt was .due, to the payment of which it had been appropriated. And the assertion, that they had never claimed to be exempted from liability on account of time, does not amount to an acknowledgment of the debt or' promise to pay it. They make a declaration of what they had not done, and it cannot be construed, as is contended, into a promise not to rely upon the statute.

According to the agreement of the parties a nonsuit must be entered.

Shepley, C. J., and Tenney and Appleton, J. J., concurred.