Swazey v. Allen

| Mass. | Sep 28, 1874

Wells, J.

The note in suit purported to bear the attestation of a witness, so as to come within the exception to the general statutes limiting such actions to six years. Gen. Sts. e. 155, § 4. Upon the question of the legal sufficiency of such an attestation, for the purpose of giving it that effect, all the facts and circumstances relating to it are competent to be proved by paroi testimony. To prove that it was subscribed to the note with the knowledge and assent of the maker, and in pursuance of the agreement or understanding of the parties at the time the note was signed, is no more to vary or add to the terms of a written contract, than it is to prove that it was not written at the time it purports to be upon the face of the note. The proposition to be established by the plaintiff is that the witness put his name to the note “ 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. 276. Smith v. Dunham, 8 Pick. 246.

That the witness did not see the maker actually sign the note, and that his attestation was at a subsequent interview, are facts bearing upon the question; but they are not conclusive. Smith v. Dunham, supra. Pequawkett Bridge v. Mathes, 7 N. H. 230. The length of time intervening affects the degree of weight, not the. legal effect to be given to the fact that the signature of the witness was not at the same time with that of the maker.

We are of opinion that upon the statements of the bill of exceptions it was a question for the jury, and therefore wrongly decided by the court. JExceptions sustained.