The defendants pleaded the general issue, conditions performed, and the statute of limitations of 1810.*
To the plea of the statute of limitations plaintiff replied a promise by the defendants within three years; and at Spring Term, 1825, the cause came on for trial before Badger, J., 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 Adams, at March Term, 1809, of said court, "Satisfied," and did not then, nor hath at any *Page 21 time since, paid the moneys into court or to any person authorized (45) to receive the same. They further find that no demand was made against Slade Pearce in his lifetime, 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.
* Be it enacted, etc., That all suits on sheriffs'. 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 actionshall 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. 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 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 (49) 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 theplaintiff 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,
Affirmed.
Cited: Wagstaff v. Smith, 39 N.C. 4; Thompson v. Gilreath, 48 N.C. 495;Hewlett v. Schenck, 82 N.C. 235. *Page 22