President, Directors, &c. of The Village Bank vs. Stephen Arnold & another, Executors, 4 Met. 587

Dewey, J. We think that the want of authority from the plaintiffs, originally, to institute this action, would not have been a fatal objection to the maintenance of the same, but that this defect might be obviated by a subsequent authority ratifying the institution of the suit, and assenting to the further prosecution »f it. But the defence goes much deeper, and is placed upon the entire want of privity between the plaintiffs and John Arnold.

It appears from the facts stated, that the payees of this note never assented to nor adopted the note, until a period of more than fifteen years from its date, and from the time it was payable ; and it is further admitted, that the note never came into the hands of the plaintiffs, or was, directly or indirectly, accepted by them, or any agent of theirs, during the lifetime of John Arnold. The transaction is an ancient one, and it may now be difficult to ascertain what are the real equities of the case between the party, who prosecutes in the name of the Village Bank, and the defendants.

To give the note effect as a valid contract and take it out of the statute of limitations, which is applicable to all other than witnessed notes, it must be shown to have been in force, as an existing contract, in the form of an attested note of John Arnold to the Village Bank. But the note, not having been presented to the bank nor assented to by it, until after the death of the maker, did not assume the character of a contract between them, while Arnold was living.

The bank and Arnold were the only parties who could give vitality to the note, and the bank having, as already stated, never recognized it, nor adopted it, during the lifetime of Arnold, nor until after the lapse of fifteen years from its maturity, it is now too late, we think, for the bank, by their present assent, to give effect to the note, and enforce payment of it. Plaintiffs nonsuit