
    Emory Walker vs. Samuel Warfield, Jr. & another
    The deposition of a witness, who was out of the commonwealth, was taken under a commission from the court, to be used by a plaintiff in an action on a promissory note, and the interrogatory put by the plaintiff to the witness was, whether he signed his name as an attesting witness to the note in suit, and the answer of the witness was, that he had no recollection of seeing the note executed, or of signing his name thereto, as attesting witness, although he might so have done. Helds that bv a reasonable implication, it must be understood from the answer, that the attestation to the note was in the hand writing of the witness} but that if this was left doubtful on the answer, the plaintiff might introduce other evidence of the hand writing both of the attesting'witness to the note and of the promisor.
    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 — St. 1786, c. 52, § 5.
    This was an action of assumpsit, commenced on the 28th of May 1842, on a promissory note of the following tenor:
    “Milford, March 16th 1833. For value received, we, Eli Bowker as principal, and Samuel Warfield, jr., as surety, prom ise to pay Peter Rockwood, treasurer of the first parish in Milford, or his successor in said office, fifty four dollars, on demand, with interest after the first day of April next.
    Eli Bowker,
    •• Attest: Nathaniel Wheeler. Samuel Warfield, jr.”
    There were two indorsements of the receipt of interest on the note, “ by the hand of Sami. Warfield, jr.,” one dated October 1834, of one year’s interest, and the other, of nine dollars, dated March 8th 1838.
    The plaintiff described himself, in the writ, as treasurer of the parish aforesaid, and successor of Peter Rockwood, the payee of the note.
    At the term when the action was entered, Bowker was defaulted ; but an appearance was entered for Warfield, and his attorney caused this entry to be made on the docket: “ Signature of note denied.” At the trial in the court of common pleas, December term 1842, before Cummins, J., Warfield’s counsel objected, that the action could not be maintained in the name of the plaintiff, as treasurer; but it being proved that he was successor of Rockwood, in the office of treasurer, the judge overruled the objection.
    
      To prove the execution of the note by Warfield, the plaintiff introduced the deposition (taken under a commission) of the attesting witness, Nathaniel Wheeler of Grantham, (N. H.) to whom the plaintiff propounded the following interrogatory, among others : “ Please look at the note annexed to the commission, purporting to be signed by Eli Bowker and Samuel War field, jr., and state whether you signed your name as attesting witness to it, and all that you know or recollect in relation to attesting said note, and whether you knew said Bowker and Warfield in 1833.” To this interrogatory the deponent answered thus : “ I have looked at said note, but have no recollection of seeing it executed, or of signing my name thereto, as attesting witness, although I might so have done. I knew said Bowker and Warfield in 1833.”
    Warfield objected to the introduction of the deposition as proof of the execution of said note; but the judge allowed it to be read to the jury.
    The plaintiff was then permitted to introduce evidence, tending to prove that the signature of Warfield to the note was in his hand writing, though this evidence was objected to by Warfield, as being secondary, and not admissible until the deponent aforesaid should more distinctly depose as to his attestation.
    Warfield did not further contest the attestation of said note, nor his subscription of the same, but he contended, and introduced said Bowker to prove, that if he (Warfield) subscribed the note, he did so after the attestation of the same, without the presence or knowledge of the attesting witness; and that the payment, purporting to be made by him (Warfield) on the 8th of March 1838, was not in fact made by him, but by said Bowker.
    The judge proposed to the jury the following questions in writing: “ 1. Was N. Wheeler present at the time when the n')te was signed by Eli Bowker and Samuel Warfield, jr., and did Wheeler then attest the same as a subscribing witness ? 2. Was N. Wheeler present when the note was signed by Samuel Warfield, jr., one of the defendants, and did Wheeler then attest the same as a subscribing witness ? 3. If Samuel War field, jr. was not present when the note was signed by Bow-ker, was it first signed by Bowker in the presence of Wheeler; and if so, did he attest the same as a subscribing witness, in the absence of Warfield, and before he signed the note ? 4. Did Warfield know, at the time when he signed the note, that Wheeler had before that time attested it as a subscribing witness ? 5. Did said Warfield pay Peter Rockwood, the holder of the note, nine dollars in the spring of 1838 ? ” The reply of the jury was, that they “ consider the first three questions doubtful.” But they decided the fourth and fifth questions in the affirmative, and thereupon returned a general verdict for the plaintiff.
    The defendant Warfield alleged exceptions to all the above mentioned rulings of the judge.
    
      Barton, for Warfield.
    
      Washburn, for the plaintiff.
   Shaw, C. J.

This is an action of assumpsit on a promissory note given to the plaintiff’s predecessor, as treasurer of a parish. Such an action, in the name of a successor, being given by the Rev. Sts. c. 100, § 25, the first exception of the defendant, being an objection to the plaintiff’s right to maintain an action, is waived. See Packard v. Nye, 2 Met. 47.

But the principal ground, on which the defendant relies to set aside the verdict is, that the attesting witness, whose deposition was offered by the plaintiff, did not state, explicitly, whether the attestation of the note was in his hand writing, and therefore other evidence of the defendant’s hand writing was not admissible. But it appears to us, that both the position and the inference drawn from it are ill founded. The witness was not asked whether the attestation was in his hand writing, but whether, in point of fact, he attested the signature of the note. This was an appeal to his memory, and he properly answered, if the fact was so, that he did not recollect signing it, or seeing it executed. If he had been under examination, viva voce, as a witness, he would probably have then been asked, whether the attestation was in his hand writing; but the question was not put to him in that form, in the deposition. It is said however, that it was necessarily implied in the question ; but if so, we think that, by a reasonable implication, it was answered. When he looks at the writing, and in reference to that and the other circumstances of time, place, and the persons concerned, he says he might have done it, he says, by a reasonable implication, it may be his hand writing, and that all the other circumstances are consistent with that fact. If it was not in his hand writing, and he knew it, or intended to deny that it was his hand writing, he could not honestly give that answer. A man who writes but little may not know his own hand writing; and even men who write much are sometimes deceived by ingenious imitation.

But suppose the witness did leave it doubtful whether he attested the note or not; then it was competent for the plaintiff to introduce other evidence, to prove the hand writing both of the attesting witness and of the party. So, if the witness had denied his attestation, it might have been proved by other evidence. Whitaker v. Salisbury, 15 Pick. 534. Lemon v.Dean, 2 Campb. 636, note. Crabtree v. Clark, 7 Shepley, 337. Without therefore relying on the point, that as the witness was beyond the jurisdiction of the court, the plaintiff was not bound to produce him; and supposing the defendant’s position correct, that, having undertaken to offer the attesting witness, he was bound to the same course of proceeding as if the witness had been within the jurisdiction; the court are of opinion, that in like circumstances the plaintiff would have been entitled to offer the other evidence produced. One principal reason for requiring of the plaintiff the production of the attesting witness is, that the other party may have the benefit of cross examination This benefit the defendant had; and if the direct interrogatories were not sufficient to draw out all the facts supposed to be within the witness’s knowledge, the defendant had the opportunity of putting such others as he wished.

As to the statute of limitations, it does not seem to have been relied upon, by special notice, under the general issue, in nature of a special plea, although the plea, and notice of another de-fence, are set forth in the bill of exceptions. But supposing this defence was rightly before the court, it was competent for the defendant to avoid it by proving either an attestation to the signature of the note by Warfield the surety, or by a payment by him within six years. We are not prepared to sanction the view taken in the argument for the plaintiff, that if a witness attest the signature of one promisor, and the note is after-wards signed by another promisor, this is an attested note, as to the latter. There would be great difficulty in holding this to be an attested note by the latter, within the statute of 1786, c. 52, § 5, which was in force when the note in question was executed. If it be said that he intended to adopt the attestation, to give it as an attested note, and thus prevent the operation of the statute, the correctness of that position may be tested by asking whether, if a promisor were in terms to say, 11 hereby sign the above as an attested note, meaning to waive the statute of limitations/ this would form a new exception to the statute ? But the fact of a payment, made by him within six years, was proved by competent evidence, and therefore it became immaterial to inquire whether the attestation applied to his signature, or not. Ilsley v. Jewett, 2 Met. 173.

Exceptions overruled  