{
  "id": 8686042,
  "name": "ANDREW BARRINGER v. JOHN A. ALLISON",
  "name_abbreviation": "Barringer v. Allison",
  "decision_date": "1878-01",
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  "first_page": "79",
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  "last_updated": "2023-07-14T19:04:18.240606+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ANDREW BARRINGER v. JOHN A. ALLISON."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nOn the 6th of September, 1860, tiefere a Justice of the Peace of Iredell County, the plaintiff recovered judgment against Thomas Allison and Edwin Fall, and a*t the same time execution was stayed by an entry, at the foot of the judgment, of the words \u201c stayed by \u201d which was signed by the defendant and attested by the Justice.\nThe present action, to enforce the defendant\u2019s liability, was commenced before a Justice in that County on the 26th of November, 1875, no part of the debt having been paid. The defences relied on are the presumption of payment and the statute of limitations.\nSince the time which elapsed between the 1st of September, 1861, and the 1st of January, 1870, is not to be counted, not quite seven years remain, a period insufficient to raise the presumption, or to bar an action founded on a judgment. Johnson v. Winslow, 63 N. C. 552; Platt v. W. N. C. R. R. Co., 65 N. C. 74; Smith v. Rogers, Ibid 181.\nThe only question therefore presented in the record or argued before the Court is, as to which of the provisions of the statute of limitations contained in the Revised Code is applicable to the facts o.f this case. If the defendant\u2019s liability rests upon contract only, the action to charge him must be brought within three years. If his liability, like that of the principal, arises out of the judgment, seven years are allowed within which it may be brought.\nWe are \u00f3f opinion that the statutory bar of seven years applies, and that the suit was commenced in time.\nThe defendant\u2019s undertaking is not unlike that of a recognizance, except that it is unconditional, and no notice is necessary to make the obligation final. By signing the entry before\u2018the Justice, he becomes a party to the judgment, and is bound to the same extent and in like manner as his principal. At the expiration of the time of stay,, execution may issue against both, or against either the-principal or the surety. This can be only upon the ground that there is a judgment against both, and that their liabilities are the same under the judgment. And if an execution may issue, ivhich presupposes a judgment warranting it, we see no reason why any other statute than that applicable to a judgment, should bo invoiced to bar an action to revive it.\nWhile we have not met with any direct adjudication upon the point, we think it involved in the decision in the case of Humphreys v. Buie, 1 Dev. 378. In that case an action of debt-before a Justice was brought against one who had stayed the execution, to enforce his obligation. He insisted he ivas not liable in this form of action. In delivering the opinion of the Court, Hall, J., says: \u201c The first reason for arresting the judgment is, that debt will not lie upon the, defendant\u2019s liability, as surety, for the stay of the execution. Such suretyship is tantamount to a judgment, because execution may issue upon it against the surety, and he is as much bound as the principal, and for that reason, assumpsit will not lie against either.\u201d\nWe are but applying the principle thus announced to a new aspect of the case, when we declare that the plaintiff\u2019s-action, based on the judgment, is not barred.\nNo error.\nPee. Curiam. \u2022 Judgment affirmed,.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. Shipp Bailey, for plaintiff,",
      "Mr. B. F. Armfield, for defendant:"
    ],
    "corrections": "",
    "head_matter": "ANDREW BARRINGER v. JOHN A. ALLISON.\nJustice\u2019s Court \u2014 Stay of Execution \u2014 Surety Thereto \u2014 Statute of Limitations.\n1. One who signs a stay of execution upon a Justice\u2019s judgment as surety, becomes thereby a party to the judgment and is bound to the same extent and in like manner as his principal.\n'2. In such cases the statutory bar of seven years (Rev. Code, chap. 65, \u00a7 6,) applies to an action brought against the surety upon the judgment.\n{Johnson v. Winslow 63 N. C. 552 ; Platt v. W. N. C. R. R. Co., 65 N. O. 74; Smith v. Rogers, Ibid. 181; Humphreys v. Buie, 1 Dev. 378, cited and approved.)\nCivil ActioN, commenced before a Justice of the Peace, and tried on appeal at Fall Term, 1877, of Ieedell Superior Court, before Cloud, J.\nThe facts are sufficiently stated by The Chibe .Justice in delivering the opinion of this Court. His Honor gave judgment for the plaintiff, and the defendant appealed.\nMessrs. Shipp Bailey, for plaintiff,\nrelied mainly upon the decision in Humphreys v. Buie, 1 Dev. 378.\nMr. B. F. Armfield, for defendant:\nStay of execution, Rev. Code oh. 62 \u00a7 11; Statute of limitation, Ibid cb. 65. No exceptions to be allowed except those mentioned in the statute. See Angel on Limitations, 601, et seq."
  },
  "file_name": "0079-01",
  "first_page_order": 95,
  "last_page_order": 97
}