Moore v. . Goodwin

Supreme Court of North Carolina

Moore v. . Goodwin

13 S.E. 772, 109 N.C. 218

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1891

StatusPublished

Cited by12 cases

This text of 13 S.E. 772 (Moore v. . Goodwin) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. . Goodwin, 13 S.E. 772, 109 N.C. 218 (N.C. 1891).

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Opinion

Davis, J.:

The evidence was properly excluded by the Court; in fact, counsel for defendants in this Court did not urge the exclusion as error, but earnestly insisted that the statute of limitations was a bar to the collection of the debt, as against the sureties. (Code, §§ 155, 171). Section 155 bars a recovery, as to sureties, unless the action is brought within three years, and section 171 provides that “ no act, admission or acknowledgment * * * by any of the makers of a promissory note or bond after the statute of limitations shall have barred the same, shall be received in evidence to repel the statute,” etc., except against the party making the admission or acknowledgment. Section 172 requires the acknowledgment or promise to be in writing to remove the bar, but this shall not “alter the effect of any payment of principal or interest.”

In the case before us the payments were made before the statute had barred, and his Honor held that this repelled the bar. That this was correct, is too well settled by the *220 decisions of this Court to admit of doubt. Bank v. Harris, 96 N. C., 118, and the cases there cited.

We are earnestly asked by counsel to review and reverse this ruling, and we are referred to many adjudications in other States, but, upon examination, we have no doubt of the correctness of the construction placed upon our statute, and reaffirm it.

Counsel says that if several co-obligors owe a debt of $1,000 under this ruling, if the note or bond shall be credited with the pitiful sum of ten cents within every three years, the debt may be kept in force against the sureties for a century. The hardship and injustice, so eloquently portrayed by counsel are without force, in view of the facts that the payment must be honestly made, and the credit not falsely or fraudulently given, and the surety or indorser, if he shall consider himself in danger of being held liable for a century, or for a longer time than he may wish, he can easily and safely protect himself against such hardship by giving the notice prescribed in § 2097 of The Code.

Error.

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Davis, J.:

The evidence was properly excluded by the Court; in fact, counsel for defendants in this Court did not urge the exclusion as error, but earnestly insisted that the statute of limitations was a bar to the collection of the debt, as against the sureties. (Code, §§ 155, 171). Section 155 bars a recovery, as to sureties, unless the action is brought within three years, and section 171 provides that “ no act, admission or acknowledgment * * * by any of the makers of a promissory note or bond after the statute of limitations shall have barred the same, shall be received in evidence to repel the statute,” etc., except against the party making the admission or acknowledgment. Section 172 requires the acknowledgment or promise to be in writing to remove the bar, but this shall not “alter the effect of any payment of principal or interest.”

In the case before us the payments were made before the statute had barred, and his Honor held that this repelled the bar. That this was correct, is too well settled by the *220 decisions of this Court to admit of doubt. Bank v. Harris, 96 N. C., 118, and the cases there cited.

We are earnestly asked by counsel to review and reverse this ruling, and we are referred to many adjudications in other States, but, upon examination, we have no doubt of the correctness of the construction placed upon our statute, and reaffirm it.

Counsel says that if several co-obligors owe a debt of $1,000 under this ruling, if the note or bond shall be credited with the pitiful sum of ten cents within every three years, the debt may be kept in force against the sureties for a century. The hardship and injustice, so eloquently portrayed by counsel are without force, in view of the facts that the payment must be honestly made, and the credit not falsely or fraudulently given, and the surety or indorser, if he shall consider himself in danger of being held liable for a century, or for a longer time than he may wish, he can easily and safely protect himself against such hardship by giving the notice prescribed in § 2097 of The Code.

Error.

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Bluebook (online)

13 S.E. 772, 109 N.C. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-goodwin-nc-1891.

Opinion

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