Hitchcock v. Cloutier , 7 Vt. 22 ( 1835 )

The opinion of the court was delivered by

Williams, Ch. J.

The declaration consists of five counts, one of which is on a promissory note, to which there is a plea of the statute of limitations. The replication to this plea was adjudged insufficient by the county court. The pleadings present this question : whether the instrument declared on was a promissory note. The period of limitation, on notes attested by one* or more witnesses, is fixed by the statute at fourteen years from the time the cause of action accrues thereon. The more correct way of presenting this question would have been, for the defendant to have traversed the replication, and objected to the instrument when offered in evidence ; as no profert is ever made of an unsealed written instrument, nor is oyer demandable. Inasmuch as no question of this kind has been presented, and the instrument is set forth in the plea, we can as well determine- whether it is a promissory note, as we could if the question had been raised in a different manner.

No precise form of words is necessary to constitute a promissory note. A promise to be accountable, or to be responsible, for a sum of money, absolutely, has been held to be a promissory note.— Morris vs. Lee, 1 Stra. 629. In the case of Chadwick vs. Allen, 1 Stra. 706, an instrument, in the following words, was held to be a promissory note, within the statute of Anne:

“ I do acknowledge, that Sir Andrew Chadwick has delivered me all the bonds and notes, for which £400 was paid him, on account of Col. Synge; and that Sir Andrew delivered me Major Graham’s receipt, and bill on me for £10, which £10 and £15 hs balance, due to Sir Andrew, I am still indebted and do promise to pay.”

In this State, although to constitute a negotiable promissory note, it is necessary that it should be payable in money absolutely, yet we have always treated contracts in the form of promissory notes, whether for the payment of money or of specific árticles, or even for the performance of services to a certain amount, as promissory notes, and declared on them as such. — Brooks vs. Page, 1 D. Chip. Rep. 340. T believe there never has been a doubt, that such contracts, if attested by one or more witnesses, were embraced in the section of the statute of limitations before referred to, which extends the time of limitation to actions on promissory notes attested, to the period of fourteen years.

On an examination of the contract in question, as stated in the papers before us, the instrument purports to be for the consideration usual in promissory notes, “value received.” It is a direct promise to pay : “ which sum, &c. the said Germain Cloutier obliges himself to pay to the said Isaac Hitchcock, or to his order, on his first demand, with interest from the date hereof.” It is signed by the said Germain Cloutier, or he has affixed hi's mark thereto. It appears to have been done in the presence of two persons, who have signed their names in the place where attesting witnesses to instruments usually place their names, and who are averred, in the replication, to have attested the same as witnesses to the execution thereof. The signature of the plaintiff to the instrument can have no effect, either to alter or explain the nature of the instrument; as there is no contract or undertaking on his part, and it is added, probably, conformable to some law or practice in the Province of Canada. We do not know, from any thing which has been presented to us, that a contract of any nature, when acknowledged or recognized before a notary public, in the Province of Canada, is merged in a security of a higher nature, or becomes a debt of record. This acknowledgment may afford greater facilities of proving the instrument, or it may create some lien on the estate of the debtor; but I apprehend, that a suit on this contract, in the common law courts of that country, must be, as here, an action of assumpsit.

We are satisfied, that the instrument in question can be considered only as a promissory note; and as the replication alleges, that it was attested by two or more witnesses, it afforded a sufficient* answer to the plea of the statute of limitations. Whether the plaintiff can make proof of the instrument without producing it on the trial, is not a question now before us. The judgment of the county court must be reversed, and judgment entered, that the replication is sufficient; and as there has been no trial had on the general issue joined to the country, the cause must be remanded to the county court for the trial of that issue.