Fletcher v. Munroe , 61 Vt. 406 ( 1889 )

The opinion of the court was delivered by

Yeazuy, J.

Plaintiff’s counsel contend that the indorsement on the note, signed by the defendant and witnessed, was in and of itself a promissory note, and being such, the replication setting out this indorsement made good answer to the plea of the statute of limitations, and cites Com. v. Whitney, 1 Metc. 21. In that case there was a memorandum on the margin of the original note in these words: “November 4th, 1831. For value received I hereby acknowledge this note to be due, and promise to pay the same on demand,” which was signed in the presence of an attesting witness. ^ In that State the statute provided as follows : “ None of the foregoing provisions ” (the statute of limitations) “ shall apply to any action brought upon a promissory note which is signed in the presence of an attesting witness.” The cuurt held that such memorandum was itself a promissory note within the statute. That case was assumpsit for money had and received, not a special declaration on the original note. In Massachusetts it seems that such a declaration is sufficient in order that the plaintiff may avail himself of the statute quoted. In Yei’mont the rule is different; and here it is held that to entitle the plaintiff to the benefit of a like provision of our statute he must count in his declaratioix specially upon the note. Carpenter v. McClure, 38 Vt. 375; Lapham v. Briggs, 27 Vt. 26. It is not necessary to allege that the note was witnessed. That fact may be replied when made material by the defendant’s plea.

In the case at bar the plaintiff replied to the plea, not i that the note declared upon was witnessed, but, as he claims it, another witnessed note. In Massachusetts it is not held that the witnessed marginal or indorsed memorandum made the original note a witnessed note. Whether the indorsement constituted a promissory note within the statute relied upon, R. L. s. 961, it is not necessary to consider, for if it was, it cannot avail the plaintiff in this action, as he can recover only on the note declared upon, and that was bax’red by the statute of limitations, which was pleaded, and the replication of another note was no answer to the plea.

Judgment reversed, and judgment for the defendant for his costs, leave to replead not being ashed.