The note on which the action is brought was without consideration. The defendant held several notes against the plaintiffs’ testator, which were due and payable; the testator paid money to the defendant, and the defendant gave the note in suit. Whether the payments were made upon the notes was a question of fact, which concerned the consideration of the defendant’s note, and upon which the fact that he gave the note was not conclusive. If the payment was made by the plaintiffs’ testator to extinguish indebtedness from him to the defendant, and not to create indebtedness from the defendant to him, it was not made in consideration of the defendant’s promise to pay him, and the promise was without consideration. The agreed statement shows that the auditor found that the money was paid upon the notes, and that the promise of the defendant contained in the note, which he gave as a voucher or memorandum of the payment, was without consideration. Sargent v. Southgate, 5 Pick. 312. Braynard v. Fisher, 6 Pick. 355. Smith v. Bartholomew, 1 Met. 276, 278. 1 Chit. Con. (11th Am. ed.) 61. Hare, Con. 216.
The payments made upon the notes declared on in set-off took them out of the operation of the statute of limitations, and the defendant is entitled to recover the balance due upon the notes to him.
Judgment for the defendant affirmed.