In Thompson v. Gilreath, 48 N.C. 493, it is held, that where a note without seal, payable to bearer, is transferred by delivery to several holders successively, and after three years from its maturity, a suit is brought on it, a new promise made to a previous holder, cannot avail a subsequent holder, to repel the statute of limitations.Summary of this case from Fleming v. Staton
(August Term, 1856.)
A note without a seal, payable to bearer, is transferred by delivery to several holders successively, and after three years from its maturity a suit is brought on it; a new promise, made to a previous holder, cannot avail a subsequent holder, to repel the statute of limitations.
ACTION of ASSUMPSIT, tried before his Honor, Judge MANLY, at the fall Term, 1855, of Henderson Superior Court.
Baxter and Jordan, for plaintiff.
N.W. Woodfin, for defendant.
The suit was commenced by a magistrate's warrant, and was brought up by successive appeals. The plaintiff declared on an unsealed note for $27, payable one day after date to Benajah Durham or bearer, and dated 21st November, 1843. This note was transferred, without endorsement, to one Hawkins, and in like manner from Hawkins to the plaintiff. The defendant pleaded the general issue and the statute of limitations.
The plaintiff proved the execution of the note; and to repel the statute of limitations, he proved by Hawkins, the former holder of the paper, that while he owned the note, and within three years before the suit was brought, the defendant said that the note was a just one, and he would pay it.
The defendant contended that the evidence of Hawkins was not sufficient to repel the statute of limitations, for the reason that it was not made to the plaintiff, and could not avail him; but his Honor was of a different opinion, and so instructed the jury. The defendant excepted to this instruction.
Verdict for the plaintiff. Judgment and appeal by the defendant.
Serjeant Williams, in the conclusion of his note of Hodsden v. Harridge, 2 Saunders Rep. 64 b., in reference to the statute of limitations, remarks, "after all, it might perhaps have been as well, if the letter of the statute had been strictly adhered to; it is an extremely beneficial law, on which the security of all men depends, and is, therefore, to be favored; and although it will, now and then, prevent a man from recovering an honest debt, yet, it is his own fault that he postponed his action so long; besides which, the permitting of evidence of promises and acknowledgements within the six years, seems to be a dangerous inlet to perjury."
The justices and force of this remark, by a most judicious and learned writer, has, of late years, been admitted and yielded to by the courts; and the inclination now is to adhere to the letter of the statute, except when a departure from it is firmly fixed by a direct authority.
No case can be cited to support the position that the bar of the statute can, under any circumstances, be repelled by a promise to another than the plaintiff. At no time, not even when the notion of a new promise be carried to its utmost extreme, was the idea that the new promise was negotiable and could be transferred, so as to give or support a right of action in a third person. The doctrine that the statute of limitations can be repelled by proof of a new promise is confined to "actions on promises." Governor v. Hanrahan, 4 Hawks' Rep. 44; Morrison v. Morrison, 3 Dev. 402; A' Court v. Cross, 11 E. C. L. Rep. 124. Where a bill or promissory note is the ground of action, the declaration sets out the liability of the defendant according to the tenor and effect of the instrument, and avers that "being so liable, the defendant, in consideration thereof, afterwards promised,"c. If the defendant pleads the statute of limitations it may be repelled by proof of a promise within the six years without a variance, or departure in pleading. Leaper v. Tatton, 16 East's Rep. 420. But in order to answer this purpose, the promise must be between the two parties to do the same thing. Falls v. Sherill, 2 Dev. and Bat. Rep. 374; Finn v. Fitts, ibid 236. If the new promise is to deliver a horse, or other specific thing, in consideration of the old debt, of course the action must be on the new promise; is, if the debt was due to the testator, and the new promise is to the executor. Hickman v. Walker, Willes' Rep. 27. Dean v. Crane, 1 Salk. Rep. 28; 6 Mod. Rep. 309. So in an action of assumpsit by the assignee of an insolvent debtor for money due to him before his insolvency, stating all the promises to have been made to the plaintiff, the defendant pleaded that he did not undertake and promise, in manner and form, as the plaintiff complained against him, at any time within six years; upon which the replication takes issue; the defendant cannot rejoin that the cause of action first accrued to the insolvent before the plaintiff became assignee, and that six years had elapsed after the cause of action first accrued to the insolvent; for the rejoinder would be a plain departure from the plea. Kinder v. Paris, 2 H. Black., note a. That case is the reverse of ours, but it fully illustrates the principle that the new promise must be made to the same person, in order to support an action on the old promise. There, the plaintiff had the precaution to avoid the difficulty by declaring upon the new promise; here, the plaintiff could not have avoided it in that way, because the promise was made to Hawkins, and was not assignable, being by parol. Possibly Hawkins would have brought the action, except for the fact that he was needed as a witness to establish the new promise. There is error.
PER CURIAM. Judgment reversed, and a venire de novo.