delivered the opinion of the Court.
The question is, whether upon the facts stared in the report and the ruling and instructions of the presiding Judge, the. plaintiff is entitled to judgment. The first objection is, that the Judge permitted certain indorsements on the first note declared on, to be read to the jury, before the plaintiff had offered any proof when the indorsements were actually made, or whether the first in-dorsement was made within six years from the maturity of the note. If the time when it was made were essential, and it could in no manner avail the plaintiff without such proof, then it could *87be of no importance which was first proved; the indorsement itself, or the time when it was made. If an action should be founded on a promissory note for the delivery of certain specific articles, on demand, would it bo necessary to prove the demand before the note could be properly admissible in evidence ? The order of proceeding should be reversed. First, the promise should be proved, and then a breach of it by a refusal or neglect to deliver the specified articles on demand made. We perceive nothing exceptionable in the ruling of the judge in the above particular.
It is not necessary in this case to give any opinion upon the question, whether the appearance of an indorsement of a partial payment on the back of a promissory note within six years from and after its maturity, unaccompanied, by any other fads, is legal evidence for the consideration of a jury, to prove payment of the sum indorsed, so as thereby to avoid the statute of limitations. On this point there is some disagreement between decided cases. The better opinion seems to be that such indorsement would not be legal evidence for such a purpose. Tn the case before us we are presented with several additional facts. One is the confession of the defendant in 1831, that he was indebted to the plaintiff, and owed him lumber and promised him a load ; both the notes declared on are payable in lumber. But there are other facts in the case which are clear and decisive. The present action was commenced on the 26th of December, 1831, and, as it is stated in the report, the plaintiff proved a payment of lumber in September, 1826, the price of which, it was admitted, was indorsed on the last note, and that he proved another payment of lumber by the defendant to him in May, 1825, and another in June, 1827, the price of which two lots of lumber made the two indorsements on the first note. It is true, no direct evidence was offered as to the time when either of the indorsements was made; but that can be of no importance. Suppose no indorsements had been made, still the facts proved would have avoided the statute of limitations. If there had been proof that the indorsements had been made at the times they appear to have been made, they would only have been strong presumptive evidence of the payment of the sums specified ; and, yet such proof would have been *88sufficient. Rooseboom v. Billington, 17 Johns. R. 183. 1 Phil. Evi. 122, note a. But in this case the sums indorsed, at least one sum on each note, was actually ¡paid by the defendant} in lumber, to the plaintiff within six years next before the commencement of the action : that is, one was paid about four years and a half, and the other about five years before. Such payments amount to a new promise, and completely avoid the statute. It appears from the case that the plaintiff had the right of applying the payments (as the defendant gave ho directions on the subject) and he applied them in the manner in which they are indorsed. We think the instructions of the Judge were correct; and accordingly there must be
Judgment on the verdict.