Barrett v. Barrett , 8 Me. 353 ( 1832 )

Weston J.

delivered the opinion of the Court at the pnsqing May term in Kennebec,

The count, wherein tire plaintiff declares as indorsee against the defendants as makers, was not inserted in the plaintiff’s writ, until after the entry of the action, under leave to ampnd. This count is objected to as inadmissible under such leave. But all the counts were for the same cause of action, depending on the note as evidence. This is not denied ; and one of the original counts shows that the action was brought, to recover the note declared on in the new count. The rule is, that a new count shall not be added for a new cause of action; but under Jeav.e to amend new .counts may be added at pleasure for the sameeause, which are consistent with the nature of the action brought.

The plaintiff as indorsee, adduced in evidence the note declared on, with the name of the payee indorsed in blank. This was prima facie evidence that the note was his property. But if it in fact belonged to the estate of the payee, and he would be answerable over for the amount .to ;that estate, his right to recover would be unaffected. Whether he suesiin his own right, or as trustee for others, is a question, which does not affect the defendants’ liability. If they, or either of them, had any matter of offset against the estate of the payee, they might avail themselves of it in defence of this action, if the plaintiff sties for the benefit of the estate, or it can be shown' that he is not the bona fide holder. But no claim of offset is set *up nr pretended. If the note belongs to the estate of the -payee, it is under the control of the plaintiff, as his administrator. Being negotiable and indorsed in blank, it -was competent for him to bring an action upon it in his own name as indorsee, or to permit any other person to do so. Marr v. Plummer, 3 Greenl. 73, and the cases there cited.

It was neither necessary or proper, that the action should be brought upon the new promise. Where a new promise is relied upon as an answer to the statute of limitations, the declaration is founded upon the original cause of action; and the new promise is set forth in the replication, or adduced in evidence.

To take a case out of the statute, there must be- an acknowledgment of indebtedness, or a promise, absolute or conditional, to pay. But the latter includes the former. A promise to pay, is an acknowledgment of indebtedness, by necessary implication. It is unimportant to whom made. It is an admission, that the debt is due and unpaid.

We are therefore of opinion, that the ground, upon which the jury returned their verdict for the defendants, was not warranted by law.

New trial granted.