Trustees of Ministerial & School Fund v. Rowell , 49 Me. 330 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

This is an action upon a promissory note of hand, purporting to have been signed by all the defendants, upon which is the name of Benj. E. Eaton as a subscribing witness.

The defendant David Rowell, pleaded the general issue, which was joined, and with it the following: — "And for brief statement, pleads the statute of limitations.” By a counter brief statement, the plaintiff says "that the brief statement is not such as to present any ground of defence, other than under the general issue.”

No particular form of a brief statement is prescribed, nor is it required to be subscribed by the defendant or his attorney. "The general issue may be pleaded in all cases, and a brief statement of special matter of defence filed,” is the language of the statute. R. S, c. 82, § 18. It has always been practically understood that formal words may be omitted : and that, if the special matter is so indicated that it can be readily apprehended, it is sufficient.

The special matter in defence, in this case, was brought to the notice of the plaintiff by the defendant. Rowell’s pleadings in terms were concise, but it is difficult to perceive how there could have been any misunderstanding of the intention. No objection was interposed to the evidence introduced by the defendant, for the purpose of showing that the note in suit was not a witnessed note, so far as it regarded Rowell, and that the attestation of the witness upon the note did not apply to him.

The 'case finds that Benj. F. Eaton was a witness to the signature of Samuel Eaton and Jonathan Eaton alone; that Rowell, the other' defendant, signed the note when the witness was not present; that he was a surety only, and had no benefit from the consideration, and that, of the payments made upon the note, he neither paid nor contributed any part thereof.

The statute of limitations is a bar to this suit against Rowell, if the note is not to be treated against him as a note signed in the presence of an attesting witness. By R. S. of 1841, c. 146, § 7, it is provided that none of the foregoing rules shall apply to any action brought upon a promissory note, which is signed in the presence of an attesting witness. Section 97, c. 81, R. S. of 1857, is similar. The case of Stone & al. v. Nichols & al., 23 Maine, 497, we think is in point. That was a case where a party signed the face of the note in the presence of an attesting witness, who put his name upon the note, as such, and the note was delivered to the payee; and, subsequently, the other defendant signed his name on the back of the note, the witness not being present. It was held not to be a witnessed note, of the latter. It is immaterial whether the makers are all on the face of the note; if some' put their names on the back as makers, they are equally holden. In such case, if all sign in the presence of another", and he writes his name on the note as an attesting witness, it applies to all. Exceptions overruled.

Judgment for the defendants.

Rice, Appleton, Cutting, Mat, Gooeenow, and Davis, JJ., concurred.