Beaufort County NcArchives Court.....Governor, V. Hanrahan 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 4:28 pm

Source: Nc Reports, Vol 11, 1897
Written: 1825

December Term 1825

(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 
on such bonds, if not commenced within 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 stat. 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 retured a special verdict as follows: they

-------------------------------
* Be it enacted, &c, that, all suits on sheriff's, Superior Court clerks', and 
clerks of the Court of Pleas and Quarter Sessions' bonds, if the right of 
action has already accrued, shall be commenced and prosecuted within three 
years after the passage of this act, and not afterwards. And all such suits, 
in case the right of action shall accrue hereafter, shall be commenced and 
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.

-------------------------------

"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 
Adams, at March Term, 1809, of said Court, "satisfied." and did not then, nor 
hath (45) 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 (who 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 Hanrahan; 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 Court held, that the plaintiff should take nothing by his 
writ, 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 under the issue, the action was revived by the promise of Hanrahan. The 
operative words in the act of 21 Jac. 1 ch. 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 
afterwards." 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 afterwards. 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 departure, the suit is on 
the bond, and the replication is founded on a promise in pais; even in the 
action of assumpsit, there is no such replication. If a demand be due on 
assumpsit to a testator, and be (46) barred by the statute, and a subsequent 
promise be made to his executor, he must declare on the subsequent promise; 
for if he declare on the first promise, and reply the second promise, it will 
be a departure. (Williams' Saunders 63 g. note 6.) The evidence to evade the 
force of the statute is 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 actio non accrevit 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 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 afterwards 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;" and Courts of Law, in 
expounding the statute, had no right to depart from (47) the express words 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 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 for 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 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 not lie for the 
real plaintiffs against the sureties on their (48) express promise, after 
three years, to pay the plaintiff's demand; because the sureties derive no 
advantage from him, and he sustains no loss 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 upon 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 for 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 all 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 mainly the 
objects of favour with the legislature. Brown et al. v. Anderson. (13 Mass. 
201.) Davis V. Shed. (15 Mass. 6.) Ex parte Allen. (15 Mass. 58.) Thompson v. 
Brown et al. (16 Mass. 172.)

Taylor, Chief Justice.—Whatever effect the promise to pay the money might 
have, in rendering Hanrahan individually liable (which is not 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 held, 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 
sevoral 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 (49) became liable by their 
certain writing obligatory, and a replication to a plea of the statute of 
limitations, 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 those 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.

Approved. Wagstuff v. Smith, 39 N. C., 1; Thompson v. Gilreath, 48 N. C., 493; 
Hewlett v. Schenck, 82 N. C., 234.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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