Pearsall v. Kenan

• Court: North Carolina Supreme Court
• Writing for the Court: READE
• Citation: Pearsall v. Kenan, 79 N.C. 472, 28 Am.Rep. 336 (N.C. 1878)
• Decision Date: 30 June 1878
• Parties: W. D. PEARSALL, Trustee, v. OWEN R. KENAN.

28 Am.Rep. 336

79 N.C. 472

W. D. PEARSALL, Trustee,

v.OWEN R. KENAN.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried at Spring Term, 1877, of DUPLIN Superior Court, before Seymour, J.

The plaintiff as trustee of the “Dickson fund” brought this action against the defendant as surety upon a note of John J. Whitehead, principal, made on the 1st of January, 1858, for a $1,000. The execution of the note was admitted, and the defence set up was the statute of limitations, the defendant's counsel insisting that he had a vested right to the period which elapsed between the making of the note and the 10th of February, 1863 (Laws 1863, ch. 34) the date of the first act suspending the statute of presumptions of payment, which with the lapse of time from January 1st, 1870, and the commencement of the action, constituted a bar to the plaintiff's recovery, and that the legislature had no power to suspend the statute of limitations, retrospectively. His Honor held otherwise, and gave judgment for plaintiff, from which the defendant appealed.

Messrs. J. N. Stallings and Merrimon, Fuller & Ashe, for plaintiff .

Mr. W. A. Allen, for defendant .

READE, J.

After an action is barred or presumption of payment has arisen by lapse of time under a statute,--whether the legislature has the power to prevent a defendant from availing himself of the defence, seems not to be settled by the authorities. In Cooley's Const. Lim. pp 365, 369, it is said that the legislature has not the power, and in a note there is a reference to quite a number of decided cases which I have not verified. In Johnson v. Winslow, 63 N. C. 552, what is said in Cooley is cited arguendo, but the point was not before the Court, and no additional force is given to it. In Hinton v. Hinton, Phil. 410, without any reference to Cooley, it is intimated that the legislature has the power. But the point is not now before us, and therefore nothing that we could say upon it would have the force of a decision. We notice it only because it was in the argument before us.

The point in this case is not whether the legislature has the power to destroy the effect of a statute of limitation or presumption after it has operated by lapse of time, but whether it can repeal or suspend it before it operates. To repeal, is a universally recognized power; to suspend, is a kindred and lesser power; and so far as we know has never been doubted. Cooley's Const. Lim. 391. And at page 365, note 1: “The statute of limitations may be suspended for a period as to demands not already barred. Wardlaw v. Buzzard, 15 Rich. 158.” And the statutes now under consideration have been held valid by this Court in a number of cases too tedious to mention. Edwards v. Jarvis, 74 N. C. 315; Hawkins v. Savage, 75 N. C. 133; Neely v. Craige, Phil. 187; Morris v. Avery, Ib. 238; Benbow v. Robbins, 71 N. C....