Dec. 1830.

#### John N. Phifer v. William M. Giles,

From Mecklenburg.

The clause of limitation in the act of 1786 ( Rev- c. 248) respecting endorsed bonds, goes only to the action on the case given to the en-dorsee. But when a bond, after being endorsed, becomes again the property of the obligee, there is no statute of limitations to bar his action of debt.

, Debt upon the single bond of the Defendant, executed to the Plaintiff, dated December 17", 1819.

The only question was, whether the statute of limitations which was pleaded, was a bar. On this issue it was proved, that on the 6th of March, 1812, the Plaintiff had, by endorsement, assigned the bond to one Douglas,'who, on the 20th July, 1826, commenced suit against the Defendant. To this suit the statute of limitation being pleaded, a nonsuit was entered, the endorsement stricken out, and the present suit commenced.

His Honor Judge M AN gum instructed the Jury, that the statute of limitations did not bar the action, and a verdict being returned for the Plaintiff, the Defendant appealed.

Devereux, for the Defendant,

submitted the case without argument.

Hutchison, for the Plaintiff,

contended that the statute of limitation cannot possibly bar his right of recovery in the present action. The present is an action of debt, in the name of the obligee, against the obligors, upon a bond, it is admitted, that the Legislature, in the year 1826, passed an act fixing the statute upon instruments under seal, at ten years. But that act does not affect the present case. Here then, is an action of debt upon a bond&emdash;in which action, upon such an instrument, there is no statute of limitation whatever, which can affect the present case. Consequently, the Plaintiff is entitled t» recover.

*499But to meet every part of the case, which may be relied on by the Defendant, it will be considered as an ac-Hon of debt, in the name of the assignee, against the ol> .■ ligor. In that case, it is contended, that the Plaintiff would be equally entitled to recover, as in (he present action. The first act of Assembly which would have a bearing upon the question then, is ¡he act of 1715 This act limits the time of bringing different kinds of actions. In the enumeration of them, the action of debt for arrearages of rent is mentioned, and oniy for that special purpose. By this statute the bar is three years.

The next act, which has a bearing upon the question, is the act of 1762. This act was passed to make promissory notes negotiable, as inland bills of exchange were by the custom of merchants in England ; and further, directing such an action to recover the same, as upon a bill of exchange, to which it is assimilated — there being at that time no method pointed out by any act of Assembly for recovering the money due upon them. The nest act of Assembly is the act of 1786.

The act of 1786, was passed to make.bills, bonds and notes for money, as well those with seal, as those without seal, negotiable, and the interest in them, transferable, in the. same way, and under the same rules, regulations and restrictions, as promissory notes were by the act of 1762; and further directs expressly an action on the case to be brought to recover the same. In the last section of the act, it is provided “ that the act of limitation of Ibis State shall apply to all bills, bonds and notes made negotiable by this act, after the assignment or endorsement thereof, in the same way that it operates law against promissory notes,” These, are the words, from which the bar of the statute is contended to arise by implication. In order to do so, we must ascertain how it operates by law against promissory notes. By a recurrence to the act of 1762, wc find promissory notes made negotiable, as inland bills of exchange, by theiiis-*500torn of merchants in England, and the. same action given to recover the same, as a hill of exchange — which was an action on the case. And by the act of 1715, fnc bar in such an action is dirce years. Tite Legislature, in passing the act of 1715, makes 'he statute apply to the form of action, and not to the subject matter of the action. In support of-h'S position, the case of Johnston v. Oreen (1 Law Rep. 516) is cited and relied on. That was an action of debt upon a note or bill without seal, (before the passage, of the act of 1814). The statute of limitation was pleaded, and a demurrer to the plea. The Court sustained the demurrer, on the ground 'hat the statute did not apply to the action of debt, except for ar-rearages of rent 5 but that if an action on (he case had been brought, which was sustainable, the statute would have barred.

Iu T7S9, another act was passed affecting the present question, and one which is particularly relied on. The act of 1789 provides expressly for cases of the present kind. It was passed to direct the manner of proceeding upon endorsed bills or bonds under seal. The act says, “ that whereas by the act of 1786. indorsees or assignees of bills, bonds or notes under seal, are directed to bring an action on the case, to recover tbe same; which is inconsistent with the nature of such contracts, and may often prove injurious to such indorsees •” for remedy whereof, “ that after the passage of this act, the in-dorsee or assignee of such bill or bond under seal, may bring an action of debt, in his own name, as indorsee or assignee, provided the original obligee could have maintained ail action of debt on the same bill, bond or note with seal.”

Tbe assignee is here placed, precisely in the same situation with, the obligee, and the action of debt authorized to be brought. The statute of limitation would not bar in either case, provided the action of debt was brought to recover the same j for in 'the action of debt *501upon a specialty, there is no statute of limitation whatever, until the Legislature passed the act of 1820, fixi ’g the. statute in such cases &t ten years, which does not affect the presen! case.

The act of 1814 does rust apply to this case, because that act extetids to contracts only, without seal. The present instrument is under seal.

That the holder of a bill or bond under seal, would have a right to erase the endorsement, at any and all times,.does not admit > f a doubt, from a decision of this Court, in the case of Dickinson v. Van Jfoorden (1 Law JR epos. 497).

Ruffin, Judge.

The argument for the Plaintiff is entirely satisfactory. The act of 1786 (Rev. c. 248J gave an action on the case to the indorsee of a bond.— The utmost latitude which can be allowed to the clause, of limitation in that act, is that it goes to the action therein specified. If it be construed literally, it is incongruous, because the acr of limitation did not before operate upon notes, but only on actions brought on notes j and therefore it would not operate on actions brought on assigned bonds. But we should endeavor to execute the statute in its spirit; and hold'that the action ofassump-sit on an endorsed bond must be brought within three years.

But when the act of 1789 (Rev. c 314,) gave the in-dorsee the action of debt, it gave him a reno dy to which there was no period of limitation. And, at a!! events, when the obligee again becomes owner of the bond, there is nothing in any of the statutes to obstruct his recovery. The act of 1786 itself only operates on actions on the bond in the htyids of the assignee, and cannot be extended by construction, to bar the original rights of the ob-ligee.

Per Curiam. — Let the judgment below be affirmed.