Wistar v. Tate, 5 N.C. 602, 2 Car. L. Rep. 602 (1816)

July 1816 · Supreme Court of North Carolina

5 N.C. 602, 2 Car. L. Rep. 602

Wistar v. Tate.

Assumpsit against the defendant as indorser of a promissory note, made payable to him by Kittera and Musser, dated 25th August 1795, and payable a twelvemonth after date. The endorsement was in the following words, “pay the contents to W. Wistar, or his order, for value received, with recourse to me at any time hereafter, without further notice."

The makers of the note were insolvent in 1797; but separate suits were brought against them in 1799, in which judgments were confessed; but nothing was made by the execution, which was returned in 1800. A demand was made on the defendant in 1815 ; after which this suit was brought. The pleas were ‘general issue’ and ‘statute of limitations.'

Henderson, for the plaintiff. Browne, for the defendant.

For the plaintiff it was urged, that the terms of the endorsement gave the plaintiff a right to call upon the defendant, whenever thereafter he thought proper, without limitation as to time, or restriction as to the person’s performance of any act on his part. In an ordinary endorsement the plaintiff must have made a prompt demand upon the drawer, and in case of failure, have given notice to the defendant and after all this, must have brought his action within three years, if the defendant thought fit to plead the statute. But the doing of those things has been dispensed with by the defendant, who has also restrained himself from taking advantage of the statute. That in the most favourable construction for the defendant, the cause of action accrued only upon the demand; so that the suit being brought immediately after that, the statute has not attached.

For the defendant it was insisted, that the statute must be presumed to be pleaded the right way, either non assumpsittres infra annos or actio non accrevit, as the case may require, or even both ways.

Where the action accrues by the promise, the plea is non assumpsit infra, &c. Where it accrues by some collateral matter, e. g. “if you will board such a one, I will pay you,” it is actio non.—Esp. 156. If it be, as has been urged, that the action could be brought at any time hereafter, next moment or 100 years, the plea would be non assumpsit infra, and is certainly a bar. What is it but a promise to pay on demand ? If it was, that he might at any time hereafter have recourse, provided he could not get the money from the obligor, after using due diligence, the cause of action, if it accrued at all, accrued in 1798, as completely as when the writ was brought; and so the statute is a good bar still, but the plea is actio non accrevit. With respect to the maxim of quisquis potest &c. that signifies that the defendant is not obliged to plead them.—Gilb. L. E. 43. But if the statute is pleaded, then the law says the suit shall not be maintained, and the parties saying it may, signifies not.

The Court will not under any circumstances assume jurisdiction, where it has none—4 Vesey jr. 790. 5 Ibid. 581. Nor can the agreement of parties oust the jurisdiction of the Court.—1 Wils. 129.

Cameron, J.

delivered the opinion of the Court:

Although the endorsement of the notes to the plaintiff is couched in unusual terms, we cannot give to them the extraordinary latitude, which would subject the defendant to the payment of the demand after any lapse of time, as contended for the plaintiff, To place these cases on the most favourable grounds for the plaintiff, we must say, that the cause of action accrued against the defendant, from the return of the executions against the drawers of the notes. That was in 1800. No demand on defendant was made till January 1815, when the plaintiff’s demand was most clearly barred by the statute for the limination of actions.

Judgment for defendant.