
    Howe vs. Thompson.
    The payee of a promissory note, having indorsed it without'recourse, is a competent witness for the indorsee, in an action against the maker, to prove a new promise within six years.
    The adding of a date, to an indorsement of a partial payment, on the hack of a note, is not an alteration of the instrument, and in no wise affects its validity.
    A partial payment of a note, within six years, is sufficient to take it out of the statute of limitations; — and the effect is the same, though the payment be ■ made to the original payee of the note, and the action be brought in the name of his indorsee.
    Assumpsit by the plaintiff, as indorsee of a witnessed promissory note, dated December 18, 1825, against the defendant as promissor. The writ was dated December 11, 1832. The note was payable to one Stephen Oram or his order, and by him indorsed not accountable.
    
    
      The defendant pleaded the general issue, and filed a brief statement, alleging that he never promised within six years, and that material alterations liad been made in and upon the note declared on. .
    To take the case out of the statute of limitations, the plaintiff relied on an indorsement in the handwriting of said Thompson, on the back of said note, of thirty-five dollars, dated October 26, 1831; but it appeared that the date was not in Thompson’s handwriting.
    To prove the time when this indorsement and the money therein mentioned was paid, the plaintiff offered the deposition of said Oram, which was admitted, though objected to by the defendant’s counsel. Tbe deponent testified that the defendant paid the $35 on the 26th of October, 1831, and that the defendant also made tbe indorsement on the back of the note at the same time, but that he, the deponent, added the date of the indorsement, the next day after the payment was made ; but the defendant was not present and consenting to the addition of the date.
    The defendant’s counsel insisted that this was such a material alteration as rendered the note void. But Parris J. ruled otherwise. He also contended that if the sum of $35 was paid to the promisee, on account of said note, on the 26th of October, 1831, the payment would not take the case out of the statute of limitations, in the hands of the plaintiff as indorsee. But the Judge ruled otherwise.
    Cram testified further, that when tbe sum of $35 was paid by tbe defendant, he said it ought to have been paid some lime ago, and that ho would pay tbe remainder as soon as be could.
    The defendant consented to be defaulted with liberty to move to have the default taken off, if in the opinion of the whole Court, upon a consideration of the facts reported, he had a good defence.
    The question was submitted without argument, by G. W. Peirce, for the plaintiff, and R. A. L. Codman, for the defendant.
   Parkis J.

delivered tbe opinion of the Court.

The first question presented by the report of this case is, whether Cram, the promisee and indorser, is a competent witness to prove the time when the last payment was made. He had parted with all his interest in the note, and, by his special in-dorsement, had shielded himself from all liability as indorser; so that whatever might be the result of this suit, he would be in no manner responsible. The case is not distinguishable from Rice v. Stearns, 3 Mass. 225, where the payee ordered the contents of the note to be paid to the indorsee, at his own rislc, and the Court held that the indorser had no interest in the event of the suit, and was a competent witness. See also Baskins v. Wilson, 6 Cowen, 471; Barretto v. Snowden, 5 Wend. 181.

Cram was unquestionably a competent witness.

The indorsement of part payment was made by the defendant himself, and, therefore, no question could arise as to its being, at that time, a sufficient acknowledgment of indebtedness to remove the presumption of previous payment. But the date of this indorsement was not entered by him, and consequently it became material to prove when that entry was made.

The indorsement on the back of the note forms no part of the original instrument, and the addition of the date to this indorsement, by Cram, can have no effect upon the legal validity of that instrument. It is no alteration of it, and can neither destroy its efficacy or give it force.

Cram testified as to the time when the payment was made, and he further testified that the defendant, at the same time, stated that the money ought to have been paid some time ago, and that he would pay the remainder, as soon as he could. Here was abundant evidence, not only of an unambiguous acknowledgment of the debt, as existing and due at that time, but of a promise to pay, either of which is sufficient to rebut the presumption of previous payment arising from lapse of time.

The next point relied upon is, that the admission or promise to Cram, will not take the note out of the statute of limitations in the hands of the plaintiff, as indorsee. It has been settled, that an unambiguous acknowledgment of the debt, as existing and due at the time of such acknowledgment, will take a demand out of the operation of the statute of limitations. Porter v. Hill, 4 Greenl. 41; and that it is not necesssary that such acknowledgment should be made to the plaintiff himself, but if made to a stranger, in the absence of the plaintiff, it will defeat the opera* tion of the statute. Whitney v. Bigelow, 4 Pick. 110; Soulden v. Van Rensselaer, 9 Wend. 293.

It is, therefore, unimportant whether the acknowledgment of indebtedness was made to Cram, or to tlie plaintiff. Proof of that acknowledgment removed the presumption of payment and obviated the bar, which the statute of limitations would otherwise have interposed to a recovery on the note. Such seems to have been the opinion of the Court, in Frye v. Barker, 4 Pick. 382, where the admisssion of indebtedness and promise to the payee were deemed sufficient to enable the indorsee to avoid the statute ; and in Dean v. Hewett, 5 Wend. 257, where the Court expressly decided, that an action may he maintained by the in-dorsee of a promissory note, where the statute of limitations has attached, on proof of a promise to the payee to pay the debt, within six years before the commencement of the suit.

We think all the points, ruled at the trial, are well sustained by authorities.  