Tillotson v. Rose

52 Mass. 299

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Wilde, J.

This was an action of assumpsit by the surety of the defendants, on an implied promise of indemnity, he having paid the debt; and as it was paid by the plaintiff before it was payable by the terms of the contract, the defendants contend that no action accrued by the payment. This is very true; for before the maturity of the note the defendants were not liable to be sued, either by the original promisee or by the plaintiff. But after the note became payable, and the defendants neglected to pay, an action did accrue ; especially as an action was brought on the note, in the name of the promisee, and that action was defeated by the defendants, by proof of payment by the present plaintiff, the surety. According to this view of the case, it is very clear that this action is not barred by the statute of limitations; for the action was commenced within six years after the note was payable, when the cause of action first accrued to the plaintiff.

Exceptions overruled.