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