Quimby v. Buzzell , 16 Me. 470 ( 1840 )

The opinion of the Court was by

EmeR.y J.

The note in this case, bears date the 6th day of June, 1831, given by the defendant and one Charles D. Gammon, since deceased, to Jonathan Morgan, or order, by him indorsed to the plaintiff, payable in nine months, with interest. The writ is dated the 7th of May, 1838.

The note purports to bo witnessed by a man who on being introduced as a witness, testified, that ho did not recollect that ho ever saw the note signed by the defendant, and that he could not testify, that he signed said note as a witness, but the signature looked like his, with the exception of the three last letters. The witness could not say that the signature was or was not his handwriting. Other evidence was rightfully introduced, because the matter to be established was, whether it was a note attested by one witness within the meaning of the statute. The want of recollection of the witness was not sufficient to prevent the legal effect of other testimony going to establish that point. In Alexander v. Gibson, 2 Campb. 555, where a witness for the plaintiff having disproved a fact, which he was called to prove, the plaintiff was permitted to call other witnesses to prove the fact. Richardson v. Allen, 2 Stark. 296, and note on 297th page.

In this case under consideration, the defendant was a surety. But as to the holder of the note, the law recognizes no difference in regard to liability between the principal and surety. The contract is to be regarded as a note properly witnessed. And to he within the exception of the statute exempting such a note from the general statute of limitation in the seventh section.

The limitation for the commencement of an action is a very different thing from a statutory provision, that a contract of a certain description, or evidenced in a certain manner shall be void ; as in regard to the recovery of penalties. No objection is presented to the justness of this contract in the form of a negotiable note. • The moral obligation to pay remained on the promiser. And any new promise which he should have made, had the note not been witnessed, to discharge it, would have bound him, without any new consideration.

In general, statutes of limitation are to be deemed entirely prospective. Such words however, may be used as in a certain sense to give a law of this character a retrospective operation. Where the intention of the statute is understood, if expressed with sufficient clearness and distinctness to enable the Court to collect it from any part of the act, the Court is not at liberty to exclude words, but to construe the whole, with reference always to that which appears to be plainly and manifestly its object. Bloxam v. Elsee, 6 B. & C. 174. And a remedial statute is to be so construed, as most effectually to meet the beneficial end in view, and to prevent a failure of the remedy. Dwarris on Stat. 718.

It is manifestly one of the objects of the statute of March 23, 1838, c. 343, to allow the same remedy for an indorsee of negotiable paper, that was secured to the original promisee, his executor or administrator, if attested by one or more witnesses, as set forth in the 10th section of stat. c. 62. It was only carrying out the original view of the promiser to pay the original promisee or his order. Whether the stat. c. 343 does not go much further, it is not necessary now to determine. But it does say, that “ the act to which it is additional, shall not extend to bar any action hereafter brought upon any note, or contract in writing, made and signed by any person or persons, and attested by one witness or more, whereby such person or person has promised, or shall promise to pay any other person or person, his or their order, or bearer, any sum of money, whether such action be brought in the name of the original promisee or promisees, his or their executors, administrators, or the indorsee or indorsees, assignee or assignees of such promisee or promisees, his or their executors or administrators, any law or usage to the contrary notwithstanding.”

This statute has then only removed the bar to the indorsee’s pursuing a remedy in his own name, which, on such a note as the present, attested as the jury have found by one witness, might have been pursued in the name of the original promisee, had this statute not been passed. The exceptions therefore must be overruled.