Appleton, C. J.
The limitation of six years when duly pleaded, is a bar to any action on a promissory note, unless it is one “signed
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in the presence of an attesting witness.” K. S., 1857, c. 81, § 97, re-enacted by E. S., 1871, c. 81, § 83.
The giving of a note is one thing. Its indorsement is another, and very different thing. The attestation of a note is all to which the statute refers. The indorsement pre-supposes a perfected instrument — that is, a promissory note. It always takes place subsequent to the existence of the note. It is a new and different contract from that of the note, winch it transfers. An unattested indorsement is neither within the language nor the spirit of the statute, which excepts attested promissory notes from the general limitation of six years as applicable to personal contracts.
Plaintiff nonsuit.
Cutting, Walton, Barrows, Danfortii and Peters, JJ., concurred.