
    Alfred J. Stone & al. versus Margaret Nichols & al.
    
    If a note is signed by one person, witnessed, and delivered over to the payee, and afterwards, when the subscribing witness is not present, a third per, son in pursuance of an original agreemeiit to that effect, signs his name Upon the back thereof, so far as it respects the latter it is not within the provisons of the tenth section of the statute of limitations of 1821, c. 62, as a “ note in writing, made and sighed by any person or persons and attested by one or more witnesses.”
    Assumpsit by Stone and Morse against Margaret Nichols and John M. Nichols on a note of which a copy follows.
    “Brunswick, Feb. 13, 1836. Two months from date and grace, value received, I promise to pay Slone & Morse, or order, fifty dollars. “Margaret Nichols.
    “Witness, C. Hosmer.”
    John M, Nichols signed his name upon the back of the note. They were alleged in the declaration to have promised jointly and severally. The action was not commenced within six years next after the note became payable. The statute of limitations was pleaded.
    The District Judge instructed the jury, that if J. M. Nichols put his name upon the note in pursuance of an original agreement to that effect, after the signatures of Margaret and the witness, and not in their presence, and after the delivery thereof to the plaintiffs, yet they would be considered joint and several promisors, and the case would be within the exception in the statute, as .to witnessed notes, not only as it related to Margaret, but to J. M. Nichols. The jury found for the plaintiffs, and the defendants filed exceptions.
    
      A. Haines, for the defendants.
    
      W. P. Fessenden and J. W. Davis, for the plaintiffs.
   Pee Cum am.

The exceptions are sustained, and a new

trial granted, because so far as it respects John M. Nichols, this is not a witnessed note, within the provisions of the tenth section of the statute of limitations of 1821, c. 62. The action, therefore, as to him is barred by the statute of limitations.  