Jenkins v. Dawes
Massachusetts Supreme Judicial Court
Contract upon a promissory note dated August 1, 1853, signed by the defendant, payable to the order of the plaintiff, and witnessed by the wife of the plaintiff. Writ dated August 15, 1872. The answer set up the statute of limitations. At the trial in the Superior Court, before Wilkinson, J., it was agreed that the liability of the defendant depended upon the legality and binding force of the attestation.
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Contract upon a promissory note dated August 1, 1853, signed by the defendant, payable to the order of the plaintiff, and witnessed by the wife of the plaintiff. Writ dated August 15, 1872. The answer set up the statute of limitations. At the trial in the Superior Court, before Wilkinson, J., it was agreed that the liability of the defendant depended upon the legality and binding force of the attestation. The defendant asked the presiding judge to instruct the jury as follows: 1. That as the note was witnessed by the wife of the plaintiff and payee of the note, the attestation was not such as…
1Opinion of the CourtGray, C. J.
In order to take a promissory note out of the general statute of limitations limiting actions to six years, it must *601be “ signed in the presence of an attesting witness,” and the action brought by the original payee or his executor or administrator. Gen. Sts. c. 155, § 4. An “ attesting witness,” under this statute, as under the statute of wills, Gen. Sts. c. 92, § 6, must be one who at the time of the attestation would be competent to testify in court to the matter which he attested; and not one who might or might not be competent to testify upon a trial at some future time. The statute of…
2Cases cited3 opinions
- Toombs v. StoneCourt of Appeals of Kentucky · 1859
- Sullivan v. SullivanMassachusetts Supreme Judicial Court · 1871
- Pease v. AllasMassachusetts Supreme Judicial Court · 1872
3Cited by5 opinions
- In re Holt's WillSupreme Court of Minnesota · 1893
- Hiatt v. McColleyIndiana Supreme Court · 1908
- Batchelor v. PowersMississippi Supreme Court · 1977
- Belledin v. GooleyIndiana Supreme Court · 1901
- Shepard v. ParkerSupreme Judicial Court of Maine · 1902