¶1This case w'as put to the jury, under the instructions above stated, for the purpose of giving the plaintiff the benefit of all inferences the jury might properly draw from the evidence, and thus to present the question as to the competency of this evidence to avoid the effect of the statute of limitations, in the most favorable view which the law would authorize.
¶2All the evidence of verbal acknowledgments of indebtedness, given in the course of the trial, however full and unequivocal they may be, are of no avail; the Rev. Sts. c. 120, § 13, having provided that an acknowledgment or promise, to be effectual in taking a demand out of the operation of the statute of limitations, must be contained in some writing signed by the party chargeable thereby.
¶3The court perceive no objection to the instructk ns given, as not being entirely correct as general principles, and such as under competent evidence would have authorized a jury to find a verdict for the plaintiff; but upon looking at the evidence on this point, which lies in a very narrow compass, and taking all the facts to be true as disclosed in the plaintiff’s evidence, it seems to us that, as matter of law, it is the duty of the court to say that there was no sufficient evidence of any acknowledgment or promise in writing, signed by the party to be charged thereby, to avoid the effect of the statute of limitations ; and that the note, which alone is relied upon as such evidence, having been *397given up to the maker by the payee, without any condition or reservation, the parties were restored to the same state of things as existed before the making of the note, and that it could no. therefore be competent evidence of any acknowledgment or new promise.
¶4Had this note been retained by the plaintiff, it would of itself have furnished a good cause of action, and all questions as to the statute of limitations would have been avoided. But the case finds that the plaintiff, after the making and delivery of the note to him, in consequence of the dissatisfaction expressed by one of his brothers, as to the settlement and giving of the note by their father, carried the note to the maker, and gave it to him, saying that “he would give it up ; that he would not keep it, because it made difficulty in the family.” What is the natural inference to be drawn from the fact of thus giving up the note ? Is it not to be taken as a voluntary relinquishment of all liabilities arising therefrom ? Here was an exchange of papers, each party surrendering the contract or written promise of the other ; for although it is not distinctly found, yet it may be reasonably presumed, that the paper, given up by the father to the plaintiff, was a receipt he had taken from the son, at the time of making the note to him.
¶5It was certainly competent for the parties to have made such an arrangement as is supposed in the issue nresented to the jury under the instructions from the court, on the trial. There might have been a conditional, or more properly a limited, discharge of the rights of the plaintiff upon this note ; a holding of it for the sole purpose of retaining the written acknowledgment of the maker, and yet under an agreement that the amount thereof should be reduced by an indorsement thereon, if, upon further examination, it should be found that the service had been computed at too high a rate. To effect such an arrangement, however, it would seem the more proper way to have placed the note in the hands of a third person to he held for all parties, and subject to the stipulated conditions. But the difficulty in the case is the want of any evidence of any limitation or condition in the surrender of the note by the plaintiff. It was uncon*398ditional equally upon the question of indebtedness more than six years preceding, as upon the question of the value of the services. There seems to have been no reservation. The plaintiff insists that this note having been shown once to have been in existence, although afterwards surrendered, is sufficient evidence of an acknowledgment in writing of the indebtedness as to the demand sought to be recovered in this action ; but, as it seems to us, it is not competent to the plaintiff to rely upon this instrument which was cancelled by mutual consent, for the causes already referred to, and now to make it the substantial cause of action, though under another form.
¶6Verdict set aside, and a new trial ordered.