—The modern doctrine, as to what is necessary to take a case out of the statute of limitations, will be found laid down in Perley v. Little, 3 Greenl. 97 ; Porter v. Hill, 4 Greenl. 41, and in Bangs v. Hall, 2 Pick. 374. We refer to these cases as presenting a very satisfactory elucidation of the statute, and the effect to be given to it. In Whitney v. Bigelow, 4 Pick. 110, the court in Massachusetts express their determination to adhere to the principles decided in Bangs v. Hall, which are in accordance with the law as settled here. But they further proceed to state, that no set form of words is necessary to prove the acknowledgment of a debt, or a promise to pay it; and that it may be inferred from facts without words, as by payment of part of a contract, within the six years. Payment by the maker of a note of a part of it, and causing it to be indorsed thereon, is an act equivalent to an acknowledgment in words, that the note is a subsisting debt, and is evidence of a promise to pay it. And this deduction, about which there could have been no question, according to the older cases, is in Whitney v. Bigelow, holden to be consistent with the later and more approved decisions, under the statute. But it is there stated, and very properly, that the operation of the statute will not be avoided by a mere indorsement by the plaintiff himself, without the knowledge of the defendant, or proof of the payment of the sum indorsed.
The indorsement on the note in question, was made by thfe plaintiff’s testator. Is there competent proof that it was upon a payment by the defendant ? We are of opinion that there is. The indorsement must have been made before the six years had expired; for the note was given in 1825, and the testator died in *4731829. At the time of the indorsement, he was under no temptation to make it, for the sake of evidence ; as the statute would not have attached for more than two years. The indorsement was then clearly against his interest, furnishing proof that he had received part of the contents of the note. This never could have been done, if the sum indorsed had not been paid. And it could have been paid only by the defendant, or by some one authorized by him. These are inferences justified by common experience and they are of a character to satisfy the mind. Proof of this description is a kind of moral evidence, in regard to which no reasonable doubt can be entertained. It has accordingly been holden, that entries, made by persons deceased, against their interest, are admissible in evidence. Warren v. Greenville, 2 Strange, 1129. Higham v. Ridgewey, 10 East, 109. Doe, upon the dem, of Ruce v. Robson, 15 East, 32. In the last case, Lord Ellenborough says, the ground upon which this evidence has been received is, that there is a total absence of interest in the persons making the entries to pervert the fact, and at the same time a competency in them to know it.”
The opinion of the Court is, that the instructions to the jury of the presiding Judge, in the court below, were in conformity with the law of the case.
Exceptions overruled.