Holden v. Jenkins
125 Mass. 446
Mass.
1878
Check Treatment
Morton, J.

The signature intended by the St. of 1877, c. 163, is the signature of the party sought to be charged thereby, which creates against such party a cause of action or a ground of defence. The signature of an attesting witness to a promissory note does not, properly speaking, form part of the cause of ao*448tian against the maker. The attestation changes the character of the contract by annexing to it the incident that an action on it will not be barred until the lapse of twenty years. Gen. Sts. c. 155, § 4. It has somewhat the same effect as a seal, giving to the note in some respects the character of a specialty. Suppose a plaintiff to declare on an instrument, alleging it to be under seal, and the defendant to file an answer denying each and every allegation of the declaration, and setting up the statute of limitations. Would the defendant’s failure to file a special denial of the genuineness of his signature preclude him from showing that the instrument declared on, and, in fact, signed by him, was not under seal when he signed it, but that a seal had been fraudulently put upon it since, to avoid the bar of the statute of limitations ? This would be to hold that the admission implied by the statute was an admission, n'ot only of the genuineness of the signature, but also that he made the contract as the plaintiff has set it out. This would be going further than the language or purpose of the statute would justify.

The design of the statute was to save the party who relies upon a written instrument the trouble and expense of proving the signature, unless the adverse party, whose signature it is, will take the responsibility of a special denial of its genuineness, this being a fact especially within his personal knowledge.

The language of the statute implies that the signature intended is the signature of the party whose duty it is to file the denial. The signature of an attesting witness is not of this character. The fact of attestation, like a seal or a partial payment, extends the time of limitation, but does not, properly “peaking, charge the maker with any liability. If the signature to the note is denied, it is necessary to call the attesting witness, because he is the witness selected by the parties. If it is admitted, the attestation is immaterial, and need not be proved unless the maker pleads the statute of limitations; then it is necessary to prove it, not to establish the cause of action, but by way of replication to the plea of the statute of limitations.

Under the system of special pleading, the course of pleading was, that the plaintiff declared on the note according to its tenor, the defendant pleaded non assumpsit infra sex annos, and the plaintiff replied that the note was signed in the presence of *449an attesting witness, upon which allegation issue was joined. Faulkner v. Jones, 16 Mass. 290. Smith v. Dunham, 8 Pick. 246.

The admission of the genuineness of the defendant’s signature, implied by the statute, might relieve the plaintiff of the necessity of calling the subscribing witness merely for the purpose of proving the signature; but we are of opinion that it does not relieve the plaintiff of the burden df proving, in reply to the plea of the statute of limitations, the material fact that the defendant signed the note in the presence of an attesting witness. The ruling of the Superior Court, being to this effect, was correct. Exceptions overruled.