Jenkins v. Dawes , 115 Mass. 599 ( 1874 )

Gray, C. J.

In order to take a promissory note out of the general statute of limitations limiting actions to six years, it must be “ signed in the presence of an attesting witness,” and the action brought by the original payee or his executor or administrator. Gen. Sts. c. 155, § 4. An “ attesting witness,” under this statute, as under the statute of wills, Gen. Sts. c. 92, § 6, must be one who at the time of the attestation would be competent to testify in court to the matter which he attested; and not one who might or might not be competent to testify upon a trial at some future time. The statute of limitations puts the instrument, if duly attested, on the footing of a bond or other specialty; and the character of the instrument in this regard depends upon the validity of the attestation at the time it is made, and not upon future contingencies. A person whom the law declares to be incompetent to testify is not a lawful witness for any purpose. Smith v. Dunham, 8 Pick. 246. Amherst Bank v. Root, 2 Met. 522. Jourdain v. Sherman, 6 Cush. 139. Haven v. Hilliard, 23 Pick. 10. Sparhawk v. Sparhawk, 10 Allen, 155. Sullivan v. Sullivan, 106 Mass. 474. Pease v. Allis, 110 Mass. 157. At the time of the execution and attestation of the note in suit, a wife was not a competent witness in an action to which her husband was a party. St. 1852, c. 312, § 60. Barber v. Goddard, 9 Gray, 71. Burlen v. Shannon, 14 Gray, 433. It follows that the note was not duly attested, and that the instruction prayed for should have been given. Hxceptions sustained.