Leonard v. Hughlett
Johathan Leonard Administrator of John O. Gallup v. William K. Hughlett
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Opinion of the Court
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Alvey, J.,
delivered the opinion of the Court.
The declaration in this case is in assumpsit, but treating it as either in debt on the single bill, or in assumpsit founded on a promise by Leonard, made after the remedy on the single bill had become barred by the Statute of Limitations, in neither aspect could recovery be had against Hughlett, who has pleaded the Statute of Limita,tions as it applies to an action of debt on the single hill, together with the pleas of not indebted and never promised as alleged.
The single bill was made on the 28th day of August, 1855, and as no time was sj>ecified for its payment, it was payable on demand. The action was instituted on the 9th of May, 1870.
*387 The theory of the plaintiff, as set forth in his prayer for instruction to the jury, which was refused, is, that because Leonard, one of the obligors in the single bill, made a payment of interest due thereon, on the 28th of August, 1867, such payment amounted to a recognition of the debt, and an implied promise to pay it, whereby the running of the Statute was prevented, as well with respect to Hughlett as to Leonard. And in order to fix upon Hughlett liability resulting from such supposed recognition and implied promise, the plaintiff contends that the statutory period of twelve years, had not elapsed and become a complete bar to the single bill on the 28th of August, 1867, the date of the payment of interest; it being conceded, as it well might be, that if the bar was complete at that time, no promise, whether express or implied, by one obligor, would either revive the remedy on the single bill, or support an action of assumpsit on the promise, as against a co-obligor. Ellicott vs. Nichols, 7 Gill, 85 ; Bell vs. Morrison, 1 Pet,. 351.
But whether the statutory period, as applicable to the remedy on the single' bill, had elapsed or not, is wholly immaterial. If it had elapsed, and the Statute had become a complete bar, then it is conceded, that payment of interest by Leonard, could not give a right of action as against Hughlett; and if the statutory period had not elapsed, still, the payment of interest, and the implied promise resulting therefrom, could not defeat the bar of the Statute as to Hughlett; nor indeed could it either give a right of action on the implied promise, or prevent the bar of thei Statute to an action on the single bill against Leonard.) One deed may be substituted for another, but a simple contract cannot be substituted for a deed, unless the deed be released or cancelled. Add. on Contr. 1077. There cannot be a contract under seal, and a simple contract between the same parties for the payment of the same debt. There will be a merger of the simple contract, whether the par *388 ties wish it or not, for the two contracts are incompatible, and, except where one is intended to be simply collateral to the other, they cannot exist together, and the higher must prevail. Price vs. Moulton, 10 C. B., 561.
In the case of Carroll vs. Waring, 3 Gill & John., 491, where it was sought to avoid the operation of the Statute of Limitations pleaded to a bond, upon the ground that interest had been paid within the statutory period, the Court said: “ The payment of interest, if it had been precisely or definitely alleged in point of time, it is clear, both upon reason and authority, would not have had that effect that is, to avoid the operation of the Statute : “because the language of the statute of this State, in the case of a Bond, is positive and peremptory, that no bond shall be good and pleadable, or admitted in evidence, after the principal debtor and creditor have been both dead twelve years, or the debt, or the thing in action, above twelve years standing, saving to the creditor the usual benefits, or exceptions of infancy, &c. It is also incontrovertibly established that not even an express acknowledgment of the debt will revive the remedy upon the bond, when barred by the operation of the Act.”
But, assuming that the twelve years had elapsed, and become a complete bar to the remedy on the single bill, on the 28th of August, 1861, it is quite clear that the mere payment of interest on the debt would raise no such promise as would support an action for the amount due on the note. Nothing less than an express promise to pay the amount due thereon, made after the Statute had become a bar to the remedy on the bond itself, will suffice to maintain an action of assumpsit to recover the amount due. In such case, the bond, although the remedy thereon be bar-red by the Statute, may be given in evidence, as the inducement to, or as explanatory of, 'and as furnishing the legal basis of the express promise to pay the amount remaining due on the bond. This has been expressly de *389 cided by the cases of Lamar vs. Manro, 10 Gill & J., 50, and Young vs. Mackall, 4 Md., 362 . It follows that the plaintiff could not recover, in any aspect of the case, as against Hnglilett; and the Court below was therefore right in rejecting the plaintiff’s prayer ; and as the granting of the. prayers offered by the defendant could operate no injury to the plaintiff, the judgment will be affirmed.
(Decided 9th February, 1875.)
Judgment affirmed.
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