Bunker v. Athearn , 35 Me. 364 ( 1853 )

Wells, J.

—By the statute, c. 146, § 7, the limitation of six years does not “ apply to any action brought upon a promissory note, which is signed in the presence of an attesting witness,” &c.

By the statute of 3 and 4 of Anne, c. 9, one of the qualities of a promissory note is, that it must be payable in money. And it has been held uniformly, that it must be payable in money absolutely and unconditionally. Story on Promissory Notes, $ 22. If it provides for the performance of some other act, or in the alternative, it loses a distinctive quality of a promissory note. Cook v. Satterlee, 6 Cowen, 108; Jenney v. Herle, 1 Ld. Ray. 1361; Dennett v. Goodwin, 32 Maine, 44. The Act of 1821, c. 62, § 10, exempted from the operation of the limitation, provided in that Act, attested notes for the payment of money. It is not apparent, that the Legislature intended by the R. S. to alter the law in this respect. And such has been the construction of similar statutes in Massachusetts. Com. In. Co. v. Whitney, 1 Metc. 21. The term promissory note must have been used in the statute, in the sense in which it had previously been employed to designate a note payable in money. The instrument, upon which the suit is founded, not only provides for the payment of money for the plaintiff, but that the same should be indorsed upon a note given by the plaintiff to Benjamin Hilton or George Athearn, and in case the indorsement is not procured, that the amount should be paid to the plaintiff. The indorsement would have been a satisfaction of the requirements of the instrument, and an act which might have taken place without the payment of money, and it cannot be regarded as a promissory note.

In the defendant’s bond to the plaintiff, she recites the circumstances under which the instrument in suit was given, and the undertaking of her husband to procure the indorsement. But she makes no promise to pay it, nor does she admit it to be due. She agrees to indemnify the plaintiff against any claim that may be made on him on account of the money paid by him to her husband. While she does not acknowledge any present indebtedness 'or promise to repay the money, she makes a new dontract merely for the purpose of indemnity, if the plaintiff should be compelled to pay his note. It was not her purpose to give any new vigor to the old, but to create a new contract.

Against the defendant, as administratrix, a mere acknowledgment, from which a new promise might be inferred if made by the debtor himself, would not be sufficient to take the case out of the statute ; there must be an express promise by her to charge the estate. Oakes v. Mitchell, Adm'r, 15 Maine, 360. The statute, c. 146, >§> 19, was not intended to enlarge the liability of administrators and executors, but to require written evidence of what had been previously shown by parol testimony. Plaintiff nonsuit.

Shepley, C. J., and Howard, Rice and Hathaway, J. J., concurred.