Pratt v. Russell

61 Mass. 462

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1851
• Status: Published

Opinion

Shaw, C. J.

We cannot perceive any objection to the directions given to the jury. Undoubtedly to revive a debt barred by a statute discharge, an express promise is necessary, in contradistinction to a promise implied from an acknowledgment of the existence of the debt. So the judge directed. But the evidence tended to prove two forms of expression used by the defendant, on the same occasion; one declining to give a written promise, the other amounting to a verbal promise. The words, as he must have used them in the present tense, in answer to a claim of payment to be made by him, “ I have always said, and still say, that she shall have her pay,” are capable of being construed a promise, but might bé counteracted by the other expression. It was for the jury to decide upon the credit of the witness, and the accuracy of his recollection, and thus de cide what was said. Exceptions overruled.