Governor v. Hanrahan, 11 N.C. 44, 4 Hawks 44 (1825)

Dec. 1825 · Supreme Court of North Carolina

11 N.C. 44, 4 Hawks 44

The Governor v. Hanrahan and others.

From Beaufort.

To an action on a sheriff’s bond; the plea was, the act of 1810, barring’ suits en such bonds, if not commenced witbin six years after the right of action accrues; replication, a promise within three years. The replication is a departure from the declaration; for though the party promising may be liable in an action on the promise, yet the promise cannot restore the right of action on the bond: for to that, by the express words of the statute, lapse of time is a positive bar.

This was an action of debt, brought-on the official bond of Slade Pearce, former sheriff of Beaufort county, against the securities to said bond.

The defendants pleaded the general issue, conditions performed, and the statute of limitations of 1810.^*

To the plea of the stab lim. plaintiff replied a promise by the defendants within three years: and at Spring Term, 1825, the cause came on for trial before Badger, Judge, when the jury returned a special verdict as follows: they “ find the writing obligatory declared on to be the act and deed of the defendants, (naming them,) that the condition of the said obligation has not been performed, but broken in this, that Slade Pearce, in said obligation named, returned to the Court of Pleas and Quarter Sessions of Beaufort county a certain fieri facias, at the instance of Thomas Ellison, against Henry Mams, at March Term, 1809, of said Court, « satisfied,” and did not then, nor 'bath at any time since, paid the monies into Court, or to any person authorized to receive the same. They farther find, that no demand was made against Slade Pearce in his life time, but that since his death and within a year before the commencement of this suit, a demand was made against the administrator of said Pearce,; that Frederick Grist” (whq was one of the sureties to the bond) “died in 1811; that no demand was made upon any of the other parties to the bond, or their representatives, before the commencement of this action, except on Walter Hanralum; that a demand was made on him, within a year before the commencement of this suit, and the said Walter promised to pay the same.”

On these facts the Com*t held, that the plaintiff should take nothing by his vvrit, and that the defendants go thereof without day. Whereupon the plaintiff appealed.

Hogg, for defendants. —

The pleadings admit that the action was barred by force of the statute, and the question is, whether upon the replication and the proof tinder the issue, the action was revived by the promise of lían-rahan. The operative words in the act of 31 Jac. 1. cL 16. and of our own act of limitations of 1715, and in that of 1810 are the same, to wit, that the suits shall be brought within — years « after the passage of the act, and not af-terwards.” In the construction of these acts the lapse of years has been held a final bar to the suits herein mentioned, except in the action of assumpsit. It is sufficient for the defendants to rely on the words of the statute-, which are express that the suit shall be brought within three years after the passage of the act, and not after-wards. It remains for the plaintiff to show how his replication, can avail him. He may if he knows of any precedent, produce it. The replication is a complete depart ture, the suit is .on tbe bond, and the replication is founded on a promise in pais; even in the action, of assumpsit, tbA’e is no such replication. If a. demand be due. on as-sumpsit to a testator, and be barred by the statute, and a subsequent promise be made to his executor, be must declare on the subsequent promise; for if he declare on ^10 promise, arid reply the second promise, it will be a departure. [Williams’ Saunders 63 g. note 6.) The evidence to evade the force of the statute in assumpsit, is offered on the general issue, and several reasons have been offered to excuse the departure from the words of the enactment.

First, it has been said that the issue being joined on the promise within three years, that the affirmative of the issue is maintained by proof of the acknowledgment, which is by legal inference a promise, and it is alleged that the antecedent debt is merely a consideration to support the subsequent promise. But the plea of aclio non accremt is a good plea in all cases in assumpsit, and is the most proper one where the promise (as on a promissory note) is to pay at a certain time after date, and the early mode of pleading the statute of 21 James 1. ch. 16. was to set it out at length.

Secondly, it has been alleged that the statute proceeds on the presumption that the debt has been paid and that the proof has been lost, and that the acknowledgment removes the presumption. This is not the only evil that the statute was meant to remedy or prevent; but the policy of the statute is to provide against all the mischiefs likely to arise from litigation of stale demands, one of the greatest of which did not concern the difficulty of proof after lapse of time as to the payment or discharge; but as to what was the agreement itself, which was af-terwards remedied in part by the statute of frauds and perjuries, requiring certain contracts to be in writing. There are other evils which must be obvious, and therefore unnecessary to be mentioned. But whatever may have been the reasons, the enactment was general, that the suit should be brought within the time, and not after;” stnd Courts of Law, in expounding the statute, had no right to depart from the express tvords in pursuit of the supposed policy of the legislature. The best reason as well as the most probable, is, that the Courts, moved by the seeming hardship of barring a debt where there had been an acknowledgment, swerved from the literal construction of the statute, and that the error has become settled on authority, and therefore has been reluctantly acquiesced in. (See same note in Saunders.) But this effect of a subsequent acknowledgment has been conferred to the action of assumpsit, and the reasons apply exclusively to that form of action. It would be absurd to suppose an acknowledgment could have any effect upon an action in tort, barred by the statute, upon an action for an assault and battery, or for neglect of duty in a public officer; seeing that neither of these actions arise upon compact; but the first on the positive, natural and legal rights of the plaintiff, and the other on his relative rights by law established. But the statute of 1810 has not only the words which, when applied to torts in the act of 1715, are held to create a final and irreversible bar to an action by reason of such tort," but the policy of the statute was to secure the sheriff from suits against him on stale demands, and chiefly to protect his sureties from any suit not brought within three years after the passage of the act, where the action had then accrued, or within four years after cause of action as to suits subsequent to the statute. If- the sureties had stipulated in the bond that they were not to be liable lor any breach, unless suit should be brought within the times prescribed by the statute, the conclusion would be compulsory that they would not be liable on any suit not brought within the stipulated time. The legislature confessedly have power to say within what time suit shall be brought. It is very certain, independent of the technical reason which is itself unanswerable, that the liability on the bond being once extinct, can never be revived against the sureties by a parol promise. For the action of assumpsit would n«t lie for the real plaintiffs against the sureties on their ec&r press promise, after three years, to pay the plaintiff’s' demand; because the Sureties derivé no advantage frotó a11^ he sustains no lo’ss by their promise. The sheriff who had received the real plaintiff’s money, would be answerable for the money of the plaintiffs in an action of assumpsit; and upoh authority, a- subsequent promise to pay would be sufficient, if made within three years before suit. It may be as well to mention, that if the breach were for a tort, (as fob a refusal to serve process,) that it would be absurd to suppose that any promise could give or revive a right of action on the bond for a tort. And the statute applies to all suits, and for ali breaches.

In Massachusetts, they have a statute limiting actions against executors to four years after qualification; and upon this statute a subsequent promise of the executor has been held unavailing, because the act was made for the benefit of heirs and legatees and distributees, and not for his personal convenience merely: so in the principal case, the sureties are riiainly the objects of favour with the legislature. Brown ei al. v. Anderson, (IS Mass. 201.) Davis v. Shed, (15 Mass. 6.) Ex parte Allen, (15 Mass. 58.) Thompson v. Browne et al.-, (16 Mass. 172.)

* He it enacted, &c, that all suits on sheriff’s, Superior Court clerks’, and clerks of the Court of fleas and Quarter Sessions’ bonds, if the right of action has already accrued, shall be commenced and prosecuted within three years after tiie passage of this act, and not after-wards. And all such suits, in case the right of action shall accrue hereafter, shall be commenced an! prosecuted within six years after the said right of action shall have accrued, and not afterwards, saving nevertheless the rights of infants, femes covert, and persons non compos mentis, so that they sue within three years after their disabilities are removed.

Tayxor, Chief Justice.

Whatever effect the promise tb pay the money might have, in rendering Hanrahan individually liable, (which is nob the question now,) it is evident that it cannot charge him in a joint action with the other sureties, when the suit is on the bond. It has been hold, that in an assumpsit against several persons, the acknowledgment of one will take the case out of the statute as to, all; and even in assumpsit against one, upon a joint and several promissory note, the acknowledgment of another drawer, not sued, will take the case out of the statute as to him who is sued. (2 Douglas 652.) But the reasons of those cases do not apply to an action Of debt on a bond, in which the declaration charges that the defendants became liable by their certain writing obligatory, and a replication to a plea of the statute of li-nutations, that within three years they made a promise in manner and form as the plaintiff had 'complained against them, will be a departure from the declaration and in conflict with it. In these cases too, the defendants held themselves out to the world as partners in that transaction, and, as such, the promise of one became obligatory on all. I think the bar of the statute could not be removed even by the promise of all, when they are sued on the bond, although if a presumption of payment from length of time had been relied upon, such promise would be proper and strong evidence to repel it. But where a positive bar by statute is relied upon, a new promise cannot revive the remedy on the bond. For these reasons I am of opinion that the judgment should be affirmed.

The rest of the Court being of the same opinion,

Judgment affirmed.