The facts, as they stand in the agreed statement, leave it doubtful whether the blank indorsement was originally filled up. But it was agreed, at the argument, that, at the time of the original transaction, (if the fact is open to proof,) the signing of the note and the indorsement were both attested by the witness at the same time ; that the note was delivered, in the presence of the witness, to Goodnow, for his own use; and that it was afterwards by him transferred still under the blank indorsement, to the present plaintiff.
In answer to a defence on the statute of limitations, the only question is, whether this case comes within the exception of the Rev. Sts. c. 120, § 4. This section excepts from the statute an “ action upon a promissory note, which is signed in the presence of an attesting witness, provided the action be brought by the original payee, or by his executor or administrator.”
The first consideration is, that upon the face of the note the plaintiff is not the original payee. On the contrary, the defendant was the payee, and the plaintiff the indorsee. The policy of the statute, in limiting the exception to actions brought by the original payee, probably was, that the original consideration of the note, and the circumstances under which it was given, would be open to inquiry, and the attesting witness would, in general, be a witness to prove them. But in an action on a promissory note, payable on time, brought by an indorsee, all these inquiries, admissible only between the original parties, would be precluded. In Kinsman v. Wright, 4 Met. 219, the suit was on a note payable by the promisor to his own order. In such a note, there is no contract, until it is indorsed; and the first person to whom it is negotiated is the original party with whom the contract is made. If, on such a contract, any one can be considered the payee, it is the person to whom it is first made payable by contract. But in Kinsman v. Wright it was held that the action would not lie, because the indorsement was not attested. And the *131present case is quite as strong; for although the name of the defendant does appear on the note, it is not as promisor, but as payee. See Russell v. Swan, 16 Mass. 314.
According to usage and the custom of merchants, a blank indorsement by the payee would authorize the holder to write over the indorsement words making it payable to himself or any other person; and such indorsement must be filled up before it can be read in evidence as proof. The indorsement, thus filled up, would transfer the payee’s interest in the note to the indorsee, and render the indorser conditionally liable as indorser, but nothing more. The attestation of the indorsement does not add to the force and effect of the indorser’s contract, but only authenticates the execution of the indorsement.
If the plaintiff would go further, and rebut the presumption arising from the note itself, and claim that he had an authority to insert words over the defendant’s indorsement, which would, in effect, make a new note, payable to the plaintiff as original payee, — which he must do, in order .to bring his case within the exception, — he must prove such an express authority ; none being implied. To do this, he must rely upon the attesting witness; and it is conceded that, instead of this, he would testify that the note was indorsed in blank, and delivered to Goodnow, as indorsee, for his own use. We think the action is barred by the statute of limitations, and is not within the exception.
Plaintiff nonsuit.