Howe v. Saunders , 38 Me. 350 ( 1854 )

Shepley, C. J.

— The note presented in this case having been made payable more than twenty years before the commencement of the suit, the statute of limitations will prevent a recovery of it, unless a new promise within twenty years can be inferred from the testimony and indorsements made within that time.' The indorsement having been made by the plaintiff, is not, by the provisions of the statute -c. 146, § 23, to be “ deemed sufficient proof of payment.” It may however, be considered in connexion with other testimony, tending to prove an actual payment of the sum indorsed.

The note was made on Nov. 30, 1830, for $81,55, and was attested by a subscribing witness. -The holder could have had no motive to make an indorsement of $75, unless an actual payment of that -sum had been made. Within a year before the suit was commenced, the note and indorsement were exhibited to the defendant and became the sub-, ject of conversation. The defendant made no objection to the genuineness of either, but said he thought he ought not to pay any more than the balance due of the principal. There could have been no balance of principal due if there had been no payment made.

None of the provisions of the statute, providing for a limitation of six years, can apply to an action commenced upon a promissory note signed in the presence of an attesting witness. § 7. The only limitation applicable to this note, is that of twenty years. § 11. The application of that limitation, as an effectual bar, may be avoided by proof, that would rebut the presumption arising from the common law after the lapse of twenty years. Denny v. Eddy, 22 Pick. 533; Brewer v. Thomes, 28 Maine, 81.

If the provisions of the eleventh section be regarded as an absolute bar, unless the action be commenced “ within twenty years after the accruing of the cause of action,” as intimated in the case of Joy v. Adams, 26 Maine, 330, no rule is better established, than that a payment made upon a note or bond, operates as a renewal of the contract at that time. There has been some difference of opinion, whether the right to recover rested upon the new promise inferred from the payment, or whether such payment should be regarded as evidence only of a renewal of the original promise. Barrett v. Barrett, 8 Greenl. 353; Ware v. Webb, 32 Maine, 41; Austin v. Bostwich, 9 Conn. 496; Martin v. Williams, 17 Johns. 330; Newlin v. Duncan, 1 Harring. 204; Oliver v. Gray, 1 Har. & Gill. 264; Bell v. Morrison, 1 Peters, S. C. 351; Lonsdale v. Brown, 3 Wash. C. C. 404; Ames v. LeRue, 2 McLean, 216. The more satisfactory rule may be, when the new promise is made or arises, after the right to maintain a suit upon the original cause of action has been entirely extinguished, or when the new promise varies from the original, there should be a count upon the new promise, and the original cause of action used as proof of a valuable consideration for it. And in other cases, the declaration may be upon the original promise only.

In this case, there being no limitation but that of twenty years, operating upon the contract, the rule which applies to other contracts and debts subject to the same limitation, must be applical ie to it. In such cases the action may be maintained when there has been a payment, or the presumption has been rebutted by any acts within twenty years before the commencement of the suit. Oswald v. Legh, 1 T. R. 270; Joy v. Adams, 26 Maine, 330; Howland v. Shurtleff, 2 Met. 26; Brewer v. Thomes, 28 Maine, 81; Clark v. Hopkins, 1 Johns. 555. Defendant defaulted.

Tenney, Howard, Hathaway, and Appleton, J. J., concurred.