
    Salmon Whitney versus Jason Bigelow.
    To take a demand out of the statute of limitations, direct and positive proof of an acknowledgment or new promise in any set form of words, is not required; but they may be inferred from facts, without any words,
    A mere indorsement made on a note by the plaintiff himself, without the knowledge of the defendant or proof of payment of the sum indorsed, will not take the demand out of the statute.
    A general acknowledgment of being indebted to the plaintiff is sufficient, primé, fade, to take the demand in suit out of the statute; and the onus lies on the defendant to prove that he had reference to a different demand.
    An acknowledgment made to a stranger, in the absence of the plaintiff, will take a demand out of the statute.
    This was assumpsit upon two promissory notes, one for 444 dollars 44 cents, the other for 333 dollars 33 cents, made by the defendant on the 3d of April, 1817, payable to Francis Farr or order, and indorsed to the plaintiff. The defendant pleaded the statute of limitations. The plaintiff replied that the defendant had promised within six years. The writ was dated May 5th, 1824.
    At the trial, it appeared, that the defendant purchased of Joseph Whitney, now deceased, a farm, for which he gave these notes and several others, viz. one for 428 dollars 88 cents, two for 111 dollars 12 cents each, and one for 60 dollars per annum during the life of the widow of Joseph Whitney, all bearing the same date. The widow died April 18th, 1818. All the notes, except the one last mentioned, were on interest after the death of the widow, and a mortgage of the farm was given as collateral security. The plaintiff was the guardian of the heirs of Joseph Whitney, and this suit was brought for their use.
    
      On the 16th of April, 1821, the defendant sold a panol t^ie f"arm t0 one Sawyer, for 1000 dollars, of which 900 were paid to the plaintiff by the assent of the defendant. Mr. Hinds was the scrivener. Sawyer testified that he understood the payment was made to lessen the debt on the mortgage, but he did not recollect that the defendant said in so many words that such was the intent of the parties. Upon the larger note, was the following indorsement: “ April 3, 1821. Received the interest to this date, including the former indorsements as part of interestThe words, as part of interest, were in the handwriting of Mr. Hinds, the counsel for the defendant in this action, but who was then employed to make out the writings which passed between the administrator of the mortgagee, and Whitney, the assignee of the mortgage ; the rest of the indorsement was written by the plaintiff. There was also another indorsement, dated April 16th, 1821, on the larger note, of 27 dollars 67 cents, in the handwriting of the plaintiff. The plaintiff’s counsel stated that the sum of 900 dollars was applied to the payment of several of the notes, which were given up to the defendant on the 16th of April, 1821, and that the balance was the sum indorsed as last mentioned. The defendant did not offer evidence of any other purpose for which the 900 dollars were paid, than the one stated by Sawyer. Upon the smaller note was the following indorsement, in the handwriting of the plaintiff: <c April 3, 1821. Received the interest to this date.”
    Sawyer testified also, that about two years before the trial, he met with the defendant, when he, as well as the witness, was going to see the plaintiff; that the defendant complained of the plaintiff, and said, “ he was driving him too fast; he (the defendant) was willing to pay, but could not get the money that the defendant knew that the witness was informed of the mortgage, and the witness understood the defendant to refer to the plaintiff as driving him for the debts due on the mortgage ; but he did not remember that the defendant mentioned the word notes or mortgage. There was no evidence in the case, that the defendant owed the plaintiff for any other cause.
    Upon this evidence the jury found a verdict for the nlain tiff, and the defendant moved for a new trial, because the facts proved or admitted were not sufficient to warrant the verdict.
    
      Oct. 3d.
    
    
      Oct. 9th
    
    
      Burnside and Hinds, for the defendant,
    cited Roseboom v. Billington, 17 Johns. R. 182 ; Bangs v. Hall, 2 Pick. 374; 2 Saund. 63, note 6.
    
      Stedman and Hoar, for the plaintiff.
   Parker C. J.

delivered the opinion of the Court. This cause has properly been put by the counsel upon the question, whether the verdict can be sustained upon the principle declared in the case of Bangs v. Hall; for the Court are by no means disposed to shake that case, it having been decided on very great deliberation, and after a thorough examination of the multitude of cases which have sprung out of the statute of limitations.

The principle of the case of Bangs v. Hall is, that to take a contract out of the statute of limitations, there must be an acknowledgment of indebtedness, or an absolute or conditional promise to pay, within six years before the commencement of the suit.

In regai’d to the evidence by which those facts may be proved, no rule was laid down, nor was it necessary to lay down any, because the common and known rules of evidence will apply as well to the proof of these facts, as of any others. Direct and positive proof of an acknowledgment or promise in any set form of words, is not required. It may be inferred from facts without any words: as from the payment of part of the contract, or giving security for part or the whole, within the six years. So also, if there be words of acknowledgment or promise, without declared reference to the debt in question, it is for the jury to decide irom me circumstances in evidence, whether reference was had to the debt which is sought to be recovered. Upon this exposition we think it very clear, that the verdict in this case, which establishes the promise as made within six years, is well supported by the evidence reported.

The sum of 900 dollars was paid on the 21st of April, 1821, without any direction of the defendant as to the par ticular notes to which it should be applied, though it appears that certain notes, other than those in suit, were given up to the defendant on that payment; so that that payment cannot be evidence of an acknowledgment or promise in relation to the notes in suit; and with respect to the indorsements of interest, that by Mr. Hinds does not appear to have been made by authority from the defendant, and the other was made by the plaintiff himself. It is well settled, that a mere indorsement by the plaintiff himself, without the knowledge of the defendant, or proof of payment of the sum indorsed, will not avoid the operation of the statute. But the testimony of Sawyer, that he understood the payment was made by the defendant to lessen the debt secured by mortgage, is quite equivocal, because that purpose was answered by paying the notes which were taken up. It may well be doubted, under these circumstances, whether any sufficient evidence is derived from the payment of the 900 dollars or the indorsement of interest.

But the testimony of Sawyer, of the declarations of the defendant about two years before the trial, is of a different character. He, with the defendant, was going to see the plaintiff, and the defendant complained that the plaintiff was driving him too fast, and said he was willing to pay, but could not get the money. This, if spoken in relation to the debt in suit, was evidence of an acknowledgment of indebtedness, and a willingness to pay, on which an implied promise would be raised by the law. Now, whether the declarations referred to this debt or to some other, was a fact to be tried by the jury, and they were at liberty to infer the fact from the cir cumstances proved ; and no other debt or demand against the defendant in favor of the plaintiff being shown to exist, we do not well see how any other inference could be made.* ,

We do not perceive that this evidence is less forcible on account of the declarations having been made in the absence of the plaintiff. An original promise must be made to the party, or some one authorized to receive it; but an acknowledgment is an independent fact, which, wherever made, if clear and unequivocal, defeats the operation of the statute. , 
      
       The decision in the case of Bangs v. Hall seems not to have been affected by St. 1834, c. 182, § 1, (Revised Stat c. 120, § 13,) so for as that decision settled the nature of the promise or acknowledgment which would be held sufficient to take a case out of the statute of limitations; since the statute above cited does not alter the law as to the nature of the promise or acknowledgment, but merely substitutes a different mode of proof. See Bangs v. Hall, 2 Pick. (2nd ed) 380, n. (1); Sigourney v. Drury, 14 Pick. 390; Dickenson v. Hatfield, 5 Carr. & Payne, 46; S. C. 1 Moody & Rob. 141; Haydon v. Williams, 7 Bingh. 163; S. C. 4 Moore & Payne, 811.
     
      
       See 2 Stark. Ev. (5th Amer. ed.) 479 to 482, notes.
     
      
       See Revised Stat c. 120, § 17. As to indorsements on a bond, see 2 Stark. Ev. (5th Amer. ed.) 188,189,
     
      
       See Baillie v. Lord Inchiquin, 1 Esp. R. 435; Frost v. Bengough, 1 Bingh. 266; 2 Stark. Ev. (5th Amer. ed.) 482.
     
      
      
        Peters v. Brown, 4 Esp. R. 46, ace.
      
     
      
      
        Oliver v. Grayl 1 Harr. & Gill. 204; 2 Stark. Ev. (5th Amer. ed.) 483.
     