
    Sarah Russell, Executrix, versus James Swan.
    [t is competent for joint payees of a promissory note, to assign the same to one of the payees, and such assignment will have the same effect as if made to a stranger.
    And if an action be brought by such payee, in virtue of such assignment, he cannot avail himself of the note’s being witnessed, to take it out of the statute of limitations, as the original payees might.
    Declaration,—“ In a plea of the case, for that, at said Boston, on the 7th of July, 1798, the said Swan executed and delivered to the said Joseph Bussell, the plaintiff’s testator, then in full life, and one Patrick Jeffrey, then a copartner with said Joseph, but since deceased, doing business under the name and style of Jeffrey f Russell, a certain promissory note of that date, by which, for value received, he, the said Swan, promised the said Jeffrey &f Russell, to pay them or their order on demand 6506 dollars, 3 cents, with interest. And afterwards, at said Boston, on the 23d day of April, 1810, the said Jeffrey, then in full life, for a valuable consideration, assigned, transferred, and set over to said Joseph, the plaintiff’s testator, then in full life, all his the said Jeffrey’s right, title, and interest of, in, and to the note aforesaid, and the contents thereof; of which the said Swan had notice. And the said Joseph thereby became and was entitled in law to demand and receive the contents of said note according to its tenor and effect. And also for that, at said Boston,” &c. [reciting the making of the same note]—“ And thereafterwards on the same day of the date of said note, at said Boston, the said Jeffrey 8f Russell, by their endorsement in writing on the back of said note, by them subscribed in the name of their said firm of that date, ordered the contents of said note to be paid to the plaintiff’s said testator, then in full life ; and then and there, for value received, delivered the same, being then due and unpaid, to the plaintiff’s testator; of which the said Swan then and there had notice. By reason of all which the * said Swan [*315] became liable in law to the plaintiff’s testator to pay him the contents of said note, according to its tenor and effect; and being so liable, then and there, in consideration thereof, the said Swan undertook and faithfully promised the plaintiff’s said testator, then in full life, to pay him said sum, according to the- tenor and effect of said note. Yet, though often requested, &c.”
    To each count the defendant pleads actio non accredit infra sex annos. The plaintiff replies to the pleas severally, that the defendant made and signed the note declared on, in presence of one witness who then and there attested the same. The defendant demurs generally to these replications, and the demurrer is joined.
    
      Mason, for the defendant.
    The first count is bad, in that it sets forth no endorsement of the payees, which is absolutely necessary to the transfer of a negotiable security; nor any promise to the supposed assignee .
    As to the second count, the plaintiff relies on the statute of limitation . The exception, however, in that statute of notes attested by one or more witnesses, is expressly limited to actions brought by the original promisee, his executor or administrator. The present action is by an endorsee, and is not saved by the statute. Nor does it make any difference, that the endorsee was one of the promisees. After the endorsement, he acts in a new character, and has a new relation to the promisor. The attestation of the witness relates wholly to the original promise, and has no concern with the promise declared on.
    
      Sohier, for the plaintiff,
    was not disposed to deny that the first' count seemed open to some technical objections. But he argued that one copartner might well assign his share in a contract of this nature to the other; and that other still retain the character of promisee, and in that character might endorse the note to a third person, or maintain an action in his own name upon, the original promise. In this latter case, he will be entitled to all [ * 316 ] the * benefits belonging under the statute to an original promisee.
    As to the second count, the plaintiff sues as executrix of one of the original promisees. Her right of action is wholly founded on " the original note, and that is so attested as to take it out of the operation of the statute. The plaintiff has as much privity with the defendant, as if her testator had been sole promisee. In short, the defendant’s objection rests in the letter of the statute, while its whole spirit and intent are favorable to the claim of the plaintiff.
    
      
      
        Chitty on Bills, 101. —7 Mass. Rep. 481, Tyler vs. Binney.
      
    
    
      
      
        Stat. 1786, c. 52, § 5
    
   Parker, C. J.,

delivered the opinion of the Court. It is very clear that the first count in the declaration cannot be supported. It sets forth an assignment of a chose in action, without averring such facts, as alone constitute an assignment, so as to give a right of action to the assignee.

The second count is maintainable; for it avers an endorsement of the note by Jeffrey & Russell, the payees, to Joseph Russell, one of them; and it is certainly competent for partners, or other joint payees of a negotiable note, to assign it to one of the firm, or one of the joint payees, with the same effect that an assignment to any other person would have.

The only question is, whether it appears in the second count, that the action is brought by the plaintiff, as executrix of the original promisee; for if it is not, the exception in the statute of limitations, on which the replication is founded, does not apply.

Now, we must consider the plaintiff’s title to be such as she has set forth in her count. She is the executrix of Joseph Russell, one of the payees ; but in this suit he appears only in the character of endorsee. She can have no right of action, as his representative, in any other capacity : for by law the promise would survive to the other payee, on the death of Russell, and his executrix could have no legal interest in the note. If Russell survived Jeffrey, the action should have been brought differently, * aver- [ * 317 ] ring the fact that transmitted the right to Russell by survivorship; and in that case the replication would have been good.

But we are bound to consider the plaintiff’s only title as derived from the endorsement by Jeffrey Of Russell to Russell; so that the action is not brought by the representative of the original promisee, within the intent of the statute. We are not bound to inquire into the reason of this exception in favor of the first parties to a note; but it is probable, the object of the legislature was to check the negotiability of outstanding notes, and facilitate equitable set-offs by the debtor  