168 Mass. 134 | Mass. | 1897
The theory on which an acknowledgment or new promise takes a debt out of the statute of limitations is that it waives the bar of the statute. Ilsley v. Jewett, 3 Met. 439, 445. See Bigelow v. Norris, 139 Mass. 12. Therefore were the matter a new one, perhaps the question might be raised whether an acknowledgment before the statute had run, when there was nothing to waive and the liability was undeniable, ought to have any effect. But probably the whole doctrine is a relic of the time when the statute was regarded with disfavor and evaded as far as possible; Langdell, Con. § 73; Bangs v. Hall, 2 Pick. 368, 372, 373; and the distinction suggested has not been observed. In Custy v. Donlan, 159 Mass. 245, the acknowledgment was signed before the statute had run on the last two items recovered. So the statute had not run at the date of the letter relied on in Krebs v. Olmstead, 137 Mass. 504. See also Penniman v. Rotch, 3 Met. 216, 218; Carlton v. Ludlow Woolen Mill, 27 Vt. 496; Patton v. Hassinger, 69 Penn. St. 311, 315; Mastin v. Branham, 86 Mo. 643, 651; Pollock, C. B., in Cornforth v. Smithard, 5 H. & N. 13, 14. We assume that no question is open upon this point.
Judgment for the defendant.