Ware v. Webb , 32 Me. 41 ( 1850 )

Tenney, J.,

orally.—The promise to pay one or his order, is a promise to pay to any person who may hold the note by indorsement.

The first count is good.

That the common money count is good, is much too late for question. It has long been settled that a note, in the hands of an indorsee, may be introduced as evidence, under such a count.

But it is said the two counts are for the same cause of action. If so, there would be nothing demurrable. But that fact does not appear. There is no need to allege that the second count is for a cause different from that of the first. It is also objected that the cause of action is not alleged to have arisen within six years. Such an allegation is not necessary. The statute of limitations does not, of its own force, cut off claims, unless it be presented to the court as a defence. It furnishes only a rule of evidence. It defeats the remedy upon old promises, only when its benefits are invoked by the defendant. Neither is it necessary to allege that the note was witnessed. Declaration adjudged good.