Smith v. Eastman

57 Mass. 355

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

By the court.

Prima facie, and upon a mere comparison of dates, this action is barred by the statute of limitations. This could only be avoided by proving a promise in writing. Rev. Sts. c. 120, § 13. To prove such promise, the plaintiff offered evidence of two notes, indorsed by third persons, upon an agreement of the plaintiff, to take a part for the whole. ■

This was not an admission of a debt, but a compromise and promise to pay part for the whole. The notes, which the defendant made and presented to Bayley, were not a promise to pay this debt, but they were indorsed notes, offered as a compliance with the proposed compromise, not accepted by the plaintiff, but afterwards returned by the agent. There is no color for saying, that this was a promise in writing to pay the original debt sued for in this action.

Exceptions overruled, with double costs.