Brackett v. Mountfort , 12 Me. 72 ( 1835 )

Weston C. J.

No question is raised as to the note. The defendant relies upon the statute of limitations tobar the account. And it is barred, unless the plaintiff adduced at the trial, evidence, competent to take the' case out of the statute.

The only point really presented for our consideration is, whether the effect of the statute of limitations, which was otherwise a good bar, was removed by the testimony adduced in the case, taken alogether. Unless it was, the defendant is entitled to the protection of the statute. The testimony for the plaintiff was sufficient for this purpose; but it is the rebutting testimony, which the jury must have believed, to which our attention is directed. That contains no promise to pay, express or conditional. It must then have amounted to an admission of indebtedness, or upon principles now well settled, the bar is not removed. It would be a most unauthorized perversion of language, worthy only of the old cases, which have been so justly repudiated, to extract from what the defendant said, an admission that he was then indebted to the plaintiff. This he expressly denied. He insisted that he had paid the debt. Until the plaintiff had taken the case out of the statute by affirmative proof, in which he failed altogether, the defendant was under no obligation to prove how he paid him. It was not necessary that he should file an account in offset. And if he had filed one, he had no occasion to prove it. The statute was a sufficient defence for him, until repelled by counter proof, which although attempted was not done.

Judgment on the verdict.