Moore v. Edwards , 167 Mass. 74 ( 1896 )

Holmes, J.

The only question is whether the instrument before us is within the exception to the limitation of six years made by Pub. Sts. c. 197, § 6, in the case of “ a promissory note signed in the presence of an attesting witness.”

It is settled that notes not negotiable may be within the exception, and it has been intimated more than once that the words quoted express the same meaning as St. 1786, c. 52, § 5. See Prov. St. 1770-71, c. 9, § 8; 5 Prov. Laws, (St. ed.) 111. Sibley v. Phelps, 6 Cush. 172. Commonwealth Ins. Co. v. Whitney, 1 Met. 21, 22. The language of the act of 1786 was, “any note in writing, made and signed by any person or persons, and attested by one or more witnesses, whereby such person or persons has promised, or shall promise, to pay to any other person or persons, any sum of money mentioned in such note.”

In 1 Met. 22, Shaw, C. J. says: “We think, therefore, the term 1 promissory note ’ in the Revised Statutes, expounded in reference to the provisions for which it was substituted, is not to be limited strictly to negotiable notes, but was intended to apply to any note in writing by which one promises to pay money to another. It is not a true test, therefore, to inquire whether the promise constitutes a negotiable note.” But although a note need not be negotiable, the later decisions have assumed that it must be a promissory note in a technical sense. Sibley v. Phelps, 6 Cush. 172. Sloan v. McCarty, 134 Mass. 245. There are intelligible reasons for extending greater protection to an unconditional promise to pay an ascertained debt than to an undertaking to pay a sum which depends on future events in the country for its amount, or for becoming due a,t all. The words “promissory note” take up so much of the act of 1786 as in terms required a sum of money to be mentioned in the instrument and to be'promised. We think that these requirements mean an unconditional promise to pay a definite sum. To this extent the tests of what is a promissory note within the statute, or within the English stamp acts, or for the purposes of pleading, and what is a negotiable promissory note, are the same. It follows that the claim must be rejected, as the instrument offered for proof is not a promissory note, and therefore was barred in six years. Cushman v. Haynes, 20 Pick. 132. American Exchange Bank v. Blanchard, 7 Allen, 333. Costelo v. Crowell, 127 Mass. 293. Barlow v. Broadhurst, 4 J. B. Moore, 471. Robins v. May, 11 Ad. & El. 213. Cook v. Satterlee, 6 Cowen, 108. Seacord v. Burling, 5 Denio, 444.

Proof of claim expunged.