The opinion of the Court was afterwards prepared by
Whitman C. J.— The statute of limitations is relied upon in defence of this action, which is assumpsit upon a note 'of hand. The note had been -due more than .six years before the commencement of this suit. The plaintiff contends, that it was a witnessed note, and, therefore, not within the statute. At the left of the signature of the defendant, to the note,- a memorandum was placed, acknowledging that the interest on the note had been paid to a certain time. The name of J. S. Barrows, preceded by the word “ attest,” was placed under .the memorandum. We think this does not, unequivocally, show that the attestation was intended to extend to any thing further, than to the correctness of the memorandum. If it had .been intended that it should have been an attestation to *179the signature it seems reasonable to believe that it would have been placed above the memorandum.
The plaintiff further contends that a payment of interest, indorsed on said note, which was made within six years before the commencement of this suit, although for a year’s interest, which had become due more than six years before that time, is sufficient to take the case out of the statute; and it has been so often ruled, that the payment, of any part, whether of principal or interest, within six-years, has that effect, that we cannot entertain any doubt of the correctness of his position, Sigourney v. Drury, 14 Pick. 387.
The defendant, however, lias cited a case from the 4 Bing. 315, Collyer v. Wilcox & al. which he thinks establishes an exception to the general rule. The claim set up in that case was for certain deposites, made by the plaintiff for a particular purpose, which had failed of being accomplished, and for the interest thereon. For the principal the defendant brought the money into Court, and there tendered it; but expressly refused to pay the interest; and interposed the statute of limitations as a bar to the plaintiff’s right to recover it. It was insisted that the tender of the debt in Court, although more than six years had elapsed since the cause of action accrued, took the case out of the statute as to the interest. But the Court held, as there was an express refusal, at the time of the tender, to pay the interest, a promise to pay it could not be inferred from the tender of the principal. In that case there was no express promise to pay interest. In the case at bar there was originally an express promise to pay interest; and, at the time of paying the interest, there was no declaration, by the defendant, that he did not owe, or that he would not pay the residue of the debt. The defence, therefore, under the statute, is not made out; and the judgment must be for the amount due on the note according to its terms.