The court are of opinion, that these exceptions must be sustained. We are not aware of any case, in which it has been held, that promissory notes, taken out of the operation of the statute of limitations by being signed by an attesting witness, are limited to negotiable notes! The words in the statute of 1786, c. 52, \ 5, are, “ any note in writing, Sic., whereby such person shall promise to pay any sum of money.” The same meaning we think is intended to be expressed in Rev. Sts. c. 120, § 4, by the term “ promissory note.” Negotiability is not an essential quality of a promissory note. No definition, that we are aware of, embraces negotiability as a quality of a promissory note. Story on Notes, § 1; 2 Bl. Com. 467; Kyd on Bills, (3d ed.) 18; Chit. Bills, (10th Am. ed.) 516; Bayley on Bills, (2d Am. ed.) 1, 29. “A promissory note is, in contemplation of law, entitled to all the privileges belonging to such an instrument, by the commercial law, as well as by common law, without being negotiable.” Story on Notes, § 3. The exception of the statute of limitations has been applied to notes in writing not negotiable. Grinnell v. Baxter, 17 Pick. 386; Commonwealth Ins. Co. v. Whitney, 1 Met. 21.
And we do not perceive why the case is not within the other exception to the operation of the statute, arising from a payment made within six years. Rev. Sts. c. 120, § 17. The proof offered did not depend upon an indorsement made by the holder only; the offer was to prove that it was made by the express assent and request of the defendant.
Exceptions sustained.