
    Standfast Smith versus Josiah Dunham.
    A person, who sees the promisor of a note sign it, has no right, at another time, M subscribe his name as a witness to the note, without the consent or knowledge of the promisor ; and therefore his thus subsequently putting his name as a witness, will not bring the note within the exception in the statute of limitations in regard to witnessed notes.
    A note was signed by the maker in the presence of the attorney of the payee, the attorney having previously written upon it the word Si Witness ” in the usual place, and intending to subscribe it himself as a witness. But he did not inform the maker of his intention of witnessing the note, and accidentally neglected to put his name to it as a witness while the maker was present. Two or three hours afterward the attorney subscribed his name as a witness, the maker not being present and not knowing or consenting to his so subscribing, and then delivered the note to the payee. Held, that the note was not so witnessed as to avoid the statute of limitations.
    But it seems, that the attorney having acted bond fide, his thus signing as a witness was not such an alteration as would render the note void.
    Assumpsit by the payee against the maker of a promissory note, dated July 12, 1819, for 350 dollars, payable on demand. The defendant pleaded non assumpsit infra sex annos. The plaintiff replied that the note was made and signed by Dunham at the time and place when, &c. “ in the presence of one witness, who then and there attested the same,” The defendant took issue on this allegation.
    At the trial, before Wilde J., G. E. Head testified, that he wrote the note declared on, and that it was signed by the defendant on the day of the date in Head’s office, he then being attorney for the plaintiff. Head did not know whether Dun-ham read the note before signing it, but presumed that he did. The note, before Dunham signed it, had the word “ Witness ” written on it in the place where witnesses usually sign their names, and with the intention of Head to sign it as a witness ; though nothing was said to Dunham about the note’s being to be witnessed. There was much conversation at the time between Dunham and Head, which withdrew Head’s attention from witnessing the note while Dunham was present, and he did not subscribe his name as a witness in Dunham’s presence. In two or three hours after, Head went to an insurance office, to deliver the plaintiff the note. When he handed it to the plaintiff, the plaintiff observed that it was not witnessed, and that he should like to have it witnessed. Head immediately wrote his name as a subscribing witness, Dunham not being present and having no knowledge of this fact.
    The judge, upon this evidence, ordered a nonsuit, subject to the opinion of the whole Court.
    
      G. G. Loving, for the plaintiff.
    Where a promissory note is signed in presence of a witness, though nothing may have peen previously said by either party, the promisee may have it attested by the witness, even if the promisor does not assent ; and such attestation would bring the case within the exception in St. 1786, c. 52, § 5. The statute makes no particular mode of attestation necessary ; the only object being to preserve a sufficient proof of the execution of notes which are not to be barred by the lapse of six years. The essential point is, to have the attestation true ; and where the paper remains all the time in the hands of the witness, he cannot be mistaken as to its identity or genuineness.
    
      June 12th
    It was the intention of the parties that Head should subscribe as a witness. The evidence is conclusive on the defendant in this respect, and the jury should have been »o instructed. That it was the intention of the plaintiff’s agent, appears by his oath ; and that it was the intention of the defendant, appears on the face of the note. He must have assented to Head’s attesting the note, because, before signing, he must have seen the word “ Witness,” which is more conspicuous than any other word, and he must have known that Head, the only person present, was to be the witness. But rf the evidence was not conclusive, then the question whether it was the intention of the parties that Head should witness the note, should, have been left to the jury. Kershaw v. Cox, 3 Esp. R. 246; Knill v. Williams, 10 East, 431.
    If Head had a right to attest the note, and if it was the intention of the parties that he should do so, the attestation was not an alteration which vitiated the note. Hunt v. Adams, 6 Mass. R. 519; Cole v. Parkin, 12 East, 471; Parke v. Mears, 2 Bos. & Pul. 217; Smith v. Crooker, 5 Mass. R. 538; Lewis v. Brigham, 4 Barn. & Ald. 672; Hall v. Chandless, 4 Bingh. 123.. It was in truth not an alteration, but actually a completion, of the original contract.
    
      S. D. Parker, for the defendant.
    Head’s subscribing his name as a witness was such an alteration of the note as rendered ^ void, for it was increasing the liability of Dunham. Homer v. Wallis, 11 Mass. R. 309; Booth v. Johnson, 7 Mod. 144; Master v. Miller, 4 T. R. 320; S. C. 2 H. Bl. 141; Marson v. Petit, 1 Campb. 82, note; Long v. More, 3 Esp. R. 155, note; Henfree v. Bromley, 6 East, 312; Langham v. Cologan, 4 Taunt. 330; Markham v. Gonaston, Cro. Eliz. 626; Speake v. United States, 9 Cranch, 38. The alteration, being material and made without the consent of the defendant, the party to be affected by it, does not fall within the principle of any of the cases in which an alteration has been held not to avoid an instrument. Hatch v. Hatch, 9 Mass. R. 311.
    The note was not witnessed in the manner the statute con-' templates, for it ought to have been subscribed by the witness at the time it was signed, so as to make the attestation a part of the same transaction. Wright v. Wakeford, 4 Taunt 218; Archb. Dig. 378; M'Graw v. Gentry, 3 Campb. 232; Lemon v. Dean, 2 Campb. 636, note; Parke v. Mears, 2 Bos. & Pul. 217; Park v. Mears, 3 Esp. R. 171; Abbot v. Plumbe, 1 Doug. 216 ; Phipps v. Parker, 1 Campb. 412.
    
      June 27th.
    
   Parker C. J.

delivered the opinion of the Court. To the statute of limitations pleaded by the defendant, the plaintiff replies that the note was made and signed by the defendant at the time and place when, &c. and in the presence of one witness, who then and there attested the same ; and issue is taken on the allegation.

The question is, whether this allegation was proved by the plaintiff, or whether there was evidence of the fact which would have justified a verdict thereon in favor of the plaintiff

The exception in the statute of limitations, (St. 1786, c. 52, § 5,) is of any note in writing made and signed by any person or persons, and attested by one or more witnesses.”

Do the facts in this case prove an attestation within the meaning of the statute ? We think they do not; that it was the intention of the legislature, in making this wide discrimination between notes attested and not attested, that the attestation should be made at the time of the making of the note, and before the transaction is complete, with a view to give it in some measure the character of a specialty and put it on the footing of a bond or other specialty ; that with the attestation, it is in fact a different legal contract, from what it would be without ; and that the party to whom it was given, could not, after its delivery, change its character so materially, without the knowledge or consent of the promisor.

We do not suppose that this would amount technically to an alteration of the note, so as to defeat the plaintiff’s right to recover on it within six years, or upon evidence of a new prom ise after six years, because there was no fraudulent intent, and because the witness was actually present and saw what his name purports to attest. And therefore the case is not like the case of Homer v. Wallis, 11 Mass. R. 309, which has been cited. But this note was not “ attested by one or more witnesses ” at the time it became a perfect contract by the signature of the defendant, and the delivery of it to Head, who stood in the place of the plaintiff. We cannot distinguish between an attestation made two or three hours after the contract is completed, and one made two or three weeks, months or years , and it is obvious, that to adopt a rule admitting of so broad an application, would destroy the distinction established by the legislature, between attested and non-attested notes. Even at the trial the witness who should testify that he was present arid saw the defendant sign the note, would seem to us to have as good a right to place his name on it, to avoid the statute, as in this case Head had two or three hours after the note was given.

The strongest case cited for the plaintiff is that of Parke v. Mears, 2 Bos. & Pul. 217. The witness Hearne was not in the room in which the bond was executed, and therefore did not see it signed and sealed, but he was in an adjoining room. The defer, lant in the action was present and heard the attorney ask Hearne to attest the bond. Hearne knew the defendant’s handwriting, and the defendant had acknowledged the bond. His consent therefore to the attestation of Hearne was a necessary inference. Had Dunham in this case been in the insurance office and heard the plaintiff say to Head, that the note was not witnessed, and seen Head put his name to it, he might have been estopped to deny that it was an attested note. We think there is no evidence from which a jury can legally infer that the attestation of Head, made as it was, was by the consent of the defendant. The word " toitness ” at the bottom of the note is too common to have excited attention ; and the fact, that the defendant was not present and had no knowledge of what was done, seems to exclude the inference of consent. Nothing can be inferred from what took place when the parties were together, more than that it was the intention of the parties that the note should be witnessed when it was made.

Nonsuit made absolute. 
      
      
         See Brackett v. Mountfort, 2 Fairhield, 115 ; U. S. Dig tit. Alteration of instruments. The holder of a bill has no right to make an alteration in it to correct a mistake, unless to make the instrument conform to what all parties to it agreed or intended it should have been. Hervey v. Harvey, 15 Maine R. (3 Shepley), 357; Granite Raihoay Co. v. Bacon, 15 Pick. 239. It is not necessary that the witness to a signature should see the party sign his name to the instrument. If the person who signs, acknowledges it to be his signature, and requests the person witnessing the same to affix his name as a witness, it is sufficient, Bridge v. Mathes, 7 N. Hampsh. R. 230.
     
      
       See Revised Stat. c. 120. § 4, which enacts that the provisions of the statute of limitations shall not “ apply to any action brought upon a promis bOry note, which is signed in the presence of an attesting witness, provid ed the action be brought by the original payee, his executor or administrator. ’
     