Willard v. Clarke
48 Mass. 435
Mass.
1844
Check Treatment
Shaw, C. J.

This petition was filed under the authority ol St. 1836, c. 238, regulating assignments, § 7 of which authorizes this court to hear and determine, as a court of chancery, all matters arising under any such assignment. [Here the chief justice stated the contents of the petition.]

An answer is filed by the respondent, by which it appears, that the petitioner’s claim is contested on two grounds. 1. That his claim was barred by the statute of limitations: 2. That one of the notes, on which he claims, has been rendered void by a fraudulent alteration.

In regard to the first, it appears that one of the notes was dated March 1836, and the other April 1837 ; that the assignment was made in April 1837, but that the petitioner did not present his claims, and propose to become a party, till more than six years after the cause of action accrued on the notes; but that during the greater part of that time, the debtor had resided out of the State ; and that no dividend has yet been made.

Supposing the statute of limitations would have been a bar to an action against the debtor, it is a question whether it could be relied on as a bar to this claim. The statute of 1836, c. 238, contemplates assignments for the use of the creditors; and this, we think, must mean those who are cedi tors at the time. It further provides, § 4, that all the creditors shall have *437a right to become parties, if they apply therefor before the final dividend. If the petitioner was a creditor at the time, and has applied, not only before a final, but before any dividend, it seems difficult to perceive why he should be affected by the statute of limitations, because the settlement of the estate, under the assignment, has been delayed beyond six years. But we have not thought it necessary to give a decisive opinion upon this point, because upon the facts we are of opinion, that an action on these notes would not be barred by the statute of limitations. The first note was indeed made before the revised statutes went into operation; but it has been held, that from the time when they did go into operation, the rule in regard to the statute of limitations, as modified by those statutes, should apply to debts already contracted. Wright v. Oakley, 5 Met. 400. By Rev. Sts. c. 120, § 9, it is provided that, in applying the statute of limitations, the time that a debtor is residing out of the State shall not be taken into the computation of the six years, By this rule, the petitioner’s right of action was not barred, because six years had not elapsed since his right of action accrued.

2. The fraudulent alteration relied on was, that the holder of the note, which was not attested when it was made, afterwards procured a person to put his name thereto, as an attesting witness.

In Homer v. Wallis, 11 Mass. 309, it was held that procuring a person to sign a note as an attesting witness, who did not attest it at the time, was a material alteration, which would avoid the note; because it tended to give a character to it which the maker had not given, and to his injury. Smith v. Dunham, 8 Pick. 246, decided that such subsequent attestation, though unavailing as an attestation, did not necessarily avoid the note. In Adams v. Frye, 3 Met. 103, it was held that the procurement of such an attestation would be primá facie evidence of fraudulent intent; but that it might be rebutted by proof.

In the present case it was'proved, to the satisfaction of the court, that this attestation was so placed on the note, subsequently to its execution, with the knowledge and consent of the maker *438Under the St. of 1836, the assignment was no bar to the petitioner’s claim on the debtor, unless he came in and proved his debt. At the time therefore when this attestation was made, this was a valid note against Knower, and the holder had an interest in pursuing his claim against him. Willard, the holder, was desirous of having it renewed ; instead of which, and for his satisfaction, Knower the promisor proposed to have it attested, and he authorized the attesting witness to put his name on the note as such.

This, we think, fully rebuts the charge of fraudulent intent, and shows that it was done for a lawful and honest purpose. The court are of opinion, that the petitioner is entitled to become a party to the assignment, prove his claim, and receive his dividend.