Lowther v. Chappell , 8 Ala. 353 ( 1845 )

GOLDTH WAITE, J.

The principle upon which the. decision of Whitcomb v. Whiting, 2 Doug. 652, is rested, has often been doubted in the English Courts, and frequently denied in our own. Without reference to the many adjudicated cases on this much vexed question, it will be permitted us to state, the constant leaning now, of all Courts, is to restore the statute of limitations to its proper standing, and give it the effect which its authors evidently intended it to have; i. e. to shut out all litigation upon the expiration of the limited period, unless the original promise is revived by something equivalent to an express promise to pay, by the party sought to be charged. To this effect is Bell v. Morrison, 1 Peters, 351; Clementson v. Williams, 8 Cranch, 72; Jones v. Moore, 5 Binn, 573; Levy v. Cadit, 17 S. & R. 175; Ex’n Bank v. Sullivan, 6 N. H. 137; and many other cases might be added. When one person becomes bound with others, either upon a joint contract, or as a surety, there is no reason why the admission of those with whom he is joined, that the debt is unpaid, or their promise to pay it, shall operate to his prejudice, because it seems entirely evident, that such admission, or promise, may be made without a knowledge of the circumstances which exist between the holder of the debt and the other parties, who are sought to be thus charged. In many cases, where the contest is with respect to the validity of the contract, there is great force in the argument, that as all have a common interest under the contract, the admissions of one shall operate against all; but even there it entirely fails, if the contract, in point of fact, was a several one, and other parties are subsequently joined as sureties; it would be most unreasonable to allow the admission of a subsequent surety, to validate a defective contract, so as to bind his principal; and on the other hand, it would be equally so by the admission of the principal to extend the term for which the surety has consented to be bound. Conceding then, that the payments made by the principal debtor, in this cause, in 1836, and his admission of the debt as existing, in 1838, coupled with his promise to pay, had the effect to prevent the statute from running, as to him, yet it in nowise prevented it from doing so as to the sureties. The legal effect of their engagement is, to continue bound for the principal for six years, after the period limited for payment, and no act or admission, which is not their own, can impair this effect of the original contract.

It follows, that the law was correctly ruled by the Circuit Court.

Judgment affirmed.