The opinion
Allen, J.
By Gen. Sts. c. 105, § 3, re-enacted in Pub. Sts. c. 78, § 3, it was necessary for the plaintiff to show a new promise in writing. The return by Carpenter of the notes did not amount to such new promise, and it was not intended to be such. The plaintiff had the rightful possession of them. The payment of the percentage under the composition did not entitle the makers to have the notes surrendered to them. The plaintiff, having possession, lent them to Carpenter, who returned them, not as new notes or notes having any new force by reason of such return, but as documents belonging to the plaintiff which he had borrowed and promised to return.
The subsequent payments were not a new promise in writing. Cambridge Institution for Savings v. Littlefield, 6 Cush. 210 . Merriam v. Bayley, 1 Cush. 77 . And the letters contained no new promise. Bigelow v. Norris, 139 Mass. 12 ; S. C. 141 Mass. 14 . Dennan v. Gould, 141 Mass. 16 . Kenney v. Brown, 139 Mass. 345 . Elwell v. Cumner, 136 Mass. 102 .
Exceptions overruled.