Davidson v. Delano

Dewey, J.

1. It is conceded that the defendant could not under his answer have set up, in avoidance of the action, the want of consideration of the note ; but he insists that such fact may be shown, as corroborative testimony in aid of his evidence denying the fact of any partial payments having been made on the note, which would take the case out of the statute of limitations.

But we think that, under the sole plea of the statute of limitations, it must be taken, under Gen. Sts., c. 129, §§ 17, 27, for the purposes of the trial, as an admitted fact, that the note was, as set forth in the copy annexed to the declaration, given for a valuable consideration, and the plaintiff may properly assume that this is not to be questioned at the trial.

If this be not so, the whole range of defences arising from alleged frauds in obtaining the note, and from full payment, &c., are all equally open to the party in aid of his evidence upon the plea of the statute of limitations. Thus the defendant might indirectly avail himself of substantial grounds of defence without having raised them in his answer, or given to the other party a reasonable opportunity to prepare to meet them.

It seems to us, therefore, that under the naked plea or answer *525of the statute of limitations it is incompetent for the defendant, in aid of his other evidence to sustain such a plea, to introduce evidence impeacmng the consideration of the promissory note declared upon, and that for all the purposes of the trial a sufficient consideration must be taken to be admitted. Upon this point the exceptions are sustained.

2. The ruling of the court as to the effect to be given to the indorsements on the note in the handwriting of the payee was correct. Waterman v. Burbank, 8 Met. 354.

Exceptions sustained.