107. In Massachusetts, the statute does not apply to promissory notes which are witnessed; unless they are made negotiable, and have been transferred.1 And if the original promisee of such a note, after six years, transfers it, the note is put upon a footing with notes not witnessed; that is, the statute will begin to run against the indorsee from the time of the transfer.2 Where a witness attests the signature of one maker of a promissory note, and another maker afterwards signs it, it seems that it is not an attested note as to the latter, within the provision of the statute of limitations of Massachusetts, of 1786.3 A person who sees the promisor of a note sign it has no right at another time to subscribe his name as a witness, without the knowledge or consent of the I See Stat. of Massachusetts, Personal Actions, sect. 4, App. p. 1. [And it makes no difference that the maker of the note is an infant. Earle v. Reed, 10 Met. (Mass.) 387. Or that the note is not negotiable. Sibley v. Phelps, 6 Cush. (Mass.) 172. But it must be payable in money. Dennett v. Goodwin, 32 Me. (2 Red.) 44. Held otherwise, however, in Vermont. Bragg v. Fletcher, 20 Vt. (5 Washb.) 351.] 2 Frye v. Barker, 4 Pick. (Mass.) 384. [So where a debtor gave to his creditor a note, attested by a witness, and payable to a bank, and the creditor sold the note to a third person, who kept it fifteen years, and till after the death of the maker, and then brought an action upon it for his own benefit, but in the name and by the authority of the bank against the maker's executors, it was held, that there was never any contract between the plaintiff (the bank) and the payee, and that the note did not come within the statutory exemption of witnessed notes. Village Bank e. Arnold, 4 Met. (Mass.) 587. But where the payees of a witnessed note, more than six years after the same fell due, became bankrupt, and the note was sold by the assignee at auction and purchased by one of the payees, to whom it was transferred by delivery merely, it was held, that such payee might maintain an action on the note in the name of both payees, for his own benefit, under the statute as to witnessed notes. Drury v. Vannevar, 5 Cush. (Mass.) 442. See also Rockwood v. Brown, 1 Gray (Mass.), 261; Pritchard v. Chandler, 2 Curtis, C. C. 448. And so also may the holder of such a note maintain an action thereon for his own benefit in the name of the administrator of the payee, provided he consent, after the expiration of six years from the time when the cause of action accrued. Sigourney v. Severy, 4 Cush. (Mass.) 176. And a witnessed note continues to be saved by the statute in the hands of the assignee of an insolvent debtor, or the indorsee or assignee of such an assignee. Pitts v. Holmes, 10 Cush. (Mass.) 92. In Maine, the statute of limitations does not bar a witnessed note, sued in the name of the indorsee, though the indorsement be made more than six years after the pay-day of the note. Stanley v. Kempton, 30 Me. 118.] 3 Walker v. Warfield, 6 Met. (Mass.) 466. [And if, after the note has been signed by the maker in the presence of an attesting witness, it is signed on the back by another person not in the presence of the witness, but in pursuance of an original agreement to that effect, it is not, as to the latter, an attested note. Shep. (Me.) 49. The attesting witness must be one at the time to the same facts in court. Jenkins v. Dawes, 115 Mass. 599.] Stone v. Nichols, 18 competent to testify promisor; and, therefore, his subsequently putting his name as a witness will not bring the note within the exception in regard to witnessed notes.1 An indorsement on a promissory note acknowledging it to be due, signed by the promisor, and attested by a witness, is not an attested promissory note within the meaning of the revised statutes in Massachusetts, extending the limitation of actions upon such notes to twenty years.2 But a memorandum written on a note by the maker in these words, "For value received, I hereby acknowledge this note to be due, and promise to pay the same on demand," and signed in the presence of an attesting witness, is itself a "promissory note" within those revised statutes; and an action thereon is not barred by the statute.3 108. The statute of Maine, of 1838, in addition to the limitation act of 1821, extending to an indorsee the same right to sustain an action upon a negotiable note, attested by a witness, or by witnesses, after six years from the time of action accrued, which is given to the original promisee hy the tenth section of the statute of 1821, applies to an action on a witnessed note held by an indorsee at the time the act of 1838 was passed.* 1 Smith v. Dunham, 8 Pick. (Mass.) 246. [In order to constitute an attestation of a note, within the statute, the witness must put his name to it openly, and under circumstances which reasonably indicate that his signature is with the knowledge of the promisor, and is a part of the same transaction with the making of the note. Drury v. Vannevar, 1 Cush. (Mass.) 276; and in the presence of all the signers of the note. Lapham v. Briggs, 1 Wms. (Vt.) 26. But where the maker of the note procured it to be attested nearly six years after its date, it was held, that such attestation gave the paper the legal character of a witnessed note. Boody v. Lunt, 1 App. (Me.) 72. And see also Swazey v. Allen, 115 Mass. 594. A defendant who signs a note, already signed by others to whose signatures there is an attesting witness, may plead the statute. As to him the note is not a witnessed note. Trustees, &c. v. Rowell, 49 Me. 330.] 2 Gray v. Bowden, 23 Ib. 282. [Nor does the statute apply to a note when the action is brought by the first indorsee, the note being made payable to the promisor's own order, and by him signed and indorsed in blank, at the same time, in the presence of a person who puts his name thereto, as a witness to the signature on the face of the note, but not to the indorsement. Kinsman v. Wright, 4 Met. (Mass.) 219. And if the note is both signed and indorsed in the presence of an attesting witness, and transferred by the maker by delivery to A, who afterwards transfers it to B, and B brings an action upon it, the note, as against him, is barred, he not being the original payee. Houghton v. Mann, 13 Met. (Mass.) 128.] 3 Commonwealth Ins. Co. v. Whitney, 1 Met. (Mass.) 21. Quimby v. Buzzle, 4 Shep. (Me.) 470. See sect. 7, Stat. Maine, App. p. xxxiii. The limitation of witnessed notes in Vermont is fourteen years. App. p. xli. [Part 109. Connected with a right of action in respect to the making and transfer of notes and bills is the offence of usury. To entitle a person to a moiety of the penalty for usury, it must appear on the record that he prosecuted, complained, or sued for it, within the time prescribed by the statute for the commencement of process in such cases. Therefore, where the offence for which the penalty is demanded was alleged and proved to have been committed on the fourteenth day of October, 1807, and the bill was found by the grand jury, in November, 1808, it was held, that whatever interest the complainant might have had, it was lost to him at the commencement of the prosecution; more than one year, the time limited, having elapsed. The doctrine is, that when the usurious contract, the lending, and forbearance concur, the offence is committed, and the limitation runs from that time, and not from the payment of the money borrowed to the lender.1 A lent B £500, and at the time of the loan it was agreed that the latter should give something more than legal interest as a compensation, but no particular sum was specified. After the execution of the deed, B gave A £50, and paid interest at the rate of £5 per cent on the £500 for five years; at the end of which time a qui tam action was brought against A for usury. It was held, that the action was not barred by lapse of time, for that the loan was substantially for no more than £450, and consequently the interest at the rate of £5 per cent on the £500 received within the last year was usurious.2 payment of such a note within twenty years renews it for twenty years from the payment. Estes v. Blake, 30 Me. (17 Shep.) 164; Lincoln, &c. v. Newhall, 38 Me. (3 Heath), 179; Howe v. Saunders, Ib. 350.] 1 Commonwealth v. Frost, 5 Mass. 53; Wade qui tam v. Walton, 1 East, 195. The cause of action is consummate eo instanti the usury is paid. Breckenridge v. Churchill, 3 J. J. Marsh. (Ky.) 15. 2 Scurry qui tam v. Freeman, 2 Bos. & Pul. 381. Other cases of usury, Lloyd, qui tam v. Williams, 3 Wils. 250; Fisher qui tam v. Beasley, Dougl. 235. [Usurious interest, paid more than one year before the action is brought, cannot be recovered back. Pierce v. Conant, 25 Me. (12 Shep.) 33. The statute begins to run from the time of actual payment, and not from the time of the agreement to pay. Rushing v. Rhodes, 6 Ga. 228; Davis v. Converse, 35 Vt. (6 Shaw) 503. But usury paid on a note, itself paid by renewal, may be set off in an action on the renewed note. Hayes v. Goodwin, 4 Met. (Ky.) 80. And see ante, § 75, note. Where the delivery of personal property from the borrower to the lender is a part of a usurious transaction, the possession of such property, the usurious contract being void, by the lender, is tortious from the beginning; and, as trover will immediately lie for the property, if the action is not brought within six years from the delivery it is barred by the statute of limita tions. Schroeppel v. Corning, 5 Denio (N. Y.), 236. But Whittlesey, J., dissented, and thought the possession of the property was not tortious. Ibid. Where separate notes are given for money loaned, and for usurious interest thereon, and the latter is first paid, the payment will be considered as on account of the legal debt, and the right to recover back money paid as usury will not accrue until the principal note is paid, and the statute of limitations will not begin to run till that time. Booker v. Gregory, 7 B. Mon. (Ky.) 439. In France the lender does not acquire the right to retain his usurious interest by lapse of time. It is there held that a man cannot prescribe against good morals or public policy. And the law will not authorize a person to retain or confirm him in the possession of that which it prohibited him from taking. Troplong, Com. sur la Prescription, n. 132.] CHAPTER XII. MISCELLANEOUS SIMPLE CONTRACTS. 1. Money payable by instalment. 2. Conditional promises. 3. Liability depending on a contingency. 6. Continuation of services. 7. Postponement of right of action. 8. Money paid by one of several co-tenants, co-purchasers, and co-contractors. 9. Promises of indemnity. 10. Money paid by a surety on account of the principal. 1. Money payable by Instalment. 110. WHEN a debt is payable at several times, that is, by instalment, the time begins to run from the expiration of the first term, for the part then payable; and for the other parts, only from the day of the expiration of the respective terms of payment.1 Thus, under an act of the legislature of Maryland, incorporating a turnpike company, the shares subscribed for were to be paid for in several instalments at different times; and it was held that the statute of limitations attached to each one as it became due.2 111. But, where a sum is payable by instalments, and there is a stipulation that, upon default, all shall become due, the statute 1 1 Evans's Pothier, 404. Under such circumstances, the courts would very probably be disposed to favor every implication of an acknowledgment extended to the time of the latest payment. Ibid. [Where an officer is elected for a year, with a salary fixed at a certain sum per month, the statute does not begin to run till the end of the year. Rosborough v. Shasta Rivers, 22 Cal. 556.] 2 Baltimore, &c. Turn. Co. v. Barnes, 6 Harr. & J. (Md.) 57. [Burnham v. Brown, 10 Shep. (Me.) 400; Bush v. Stowell, 71 Pa. St. 208. Where a man subscribed for shares in a stock company, and paid the cash to an agent of the company, who died without transmitting, and eleven years after the company declared the stock forfeited, it was held that the statute did not begin to run till the declaration of forfeiture. Rice v. Pacific R. R. Co., 55 Mo. 146. But where a commissioner sold slaves on a credit of one, two, and three years, titles to be made on the payment of the first instalment, with a reservation of the right to sell again on non-payment by the purchaser, and at his risk, and the slaves were delivered, it was held, that the statute began to run in favor of the purchaser on his failure to pay the first instalment. Singleton v. Heriott, 3 Rich. (S. C.) 321. That where interest is payable annually, the statute does not begin to run till some part of the principal is due, see Grafton Bank v. Doe, Henderson v. Hamilton, and Ferry v. Ferry, cited ante, § 95, n. And see post, § 140.] |