Pinkerton v. Bailey

8 Wend. 600 | N.Y. Sup. Ct. | 1832

By the Court, Sutherland, J.

The acknowledgement was clearly sufficient to take the case out of the statute. The plaintiff’s attorney testified that in September, 1824, the note was left with him for collection ; that he wrote to the defendant for payment of the note ; that the defendant called upon him, admitted the note, and promised to settle the same. This is all that is necessary to take a case out of the statute. A promise to settle under such circumstances must be equivalent to a promise to pay. The defendant was called upon for the payment of a liquidated demand—a promissory note ; and in answer to such call, expressly admitted the giving of the note and promised to settle it, without alleging any counter demand or off-set. To settle in such a case, must mean to pay. 5 Binney, 579.

The case of Dean v. Hewitt, 5 Wendell, 256, expressly decides that an acknowledgement of, or promise to pay a negoliable note, after it is barred by the statute of limitations, enures to the benefit not only of the then holder, but of any subsequent endorsee,- and that such endorsee may recover upon the strength of it in his own name. The action is founded upon the original promise, and the effect of the acknowledgment is merely to keep alive or revive the remedy. The acknowledgement is evidence of a promise to pay the note as a negotiable instrument, that is, to pay it to any bona fide holder within six years. The distinction between a debt barred by the statute of limitations, and one discharged under an insolvent act, is perfectly established in England and in this state. 3 Wendell, 135.

The evidence of a payment or settlement of the note between the original parties in 1820, was properly disregarded. The note was made in 1818, payable in 60 days. The presumption of law is, that the endorsement is cotemporaneous with the making of a note, or at all events, was antecedent to its becoming due. When the time of the endorsement becomes material to let in the defence of payment, &c. it is incumbent upon the defendant to shew it, and rebut the legal prsumption arising from the face of the transaction. Webster v. Lee, 5 Mass. R. 339. 3 Day, 311.

New trial denied.