
    Lawrence vs. Beidleman.
    The act of limitations of 1715, ch. 27, sec. 5, does not bar an action of debt brought by the endorsee of a sealed bond against the maker, three years after the assignment.
    The action of debt given by the act of 1789, ch. 67, sec. 3, to the endorsee of a sealed bill against the maker, is not barred by the statute of limitations of 21 James I, of six years.
    The act of 1786, ch. 4, sec. 5, was not designed to embrace the statute of limitations of 21 James X, but was designed to apply to the act of 1715, ch. 27, sec. 5, barring actions upon the case, and was repealed by the act of 1789, oh. 57, sec. 3, which gave an action of debt to the endorsee; therefore, an action of debt brought by the endorsee of a sealed note, against the maker, more than three years after the endorsement, is not barred by this, or any other act of limitations.
    On the 10th of January, 1825, the defendant, Beidle-man, executed his note or bill single under seal to Sandy Owen, for five hundred dollars, payable twelve months after date, which was on the same day assigned and delivered to the plaintiff Lawrence, who brought this suit upon it on the 1st of February, 1833.
    The defendant pleaded the Statute of Limitations of six years; and also the Statute of Limitations of three years, of 1786, ch. 4, sec. 5. To which pleas the plaintiff demurred, because the note was under seal. The court below overruled the demurrer and gave judgment for the defendant, from which this writ of error is prosecuted.
    
      
      J. Rucks, for the plaintiff in error.
    In the court be- , . _ . , „ „ low, the case turned entirely on the act of 1786, ch. 4, sec. 5, which is ¡a these words: “the act of limitations of this State, shall apply to all bonds, hills, and other securities hereafter executed, made transferable by this act after the assignment or endorsement thereof, in the same manner as it operates by law against promissory potes.”
    The act of' 1762, chapter 9, sec. 2, made promissory notes negotiable as inland bills of exchange in England, and gave an action to the assignee against the maker, and also against the endorser.
    The act of 1786 extended to “all bills, bonds, or notes for money, as well those with seal as those without seal, those which are not payable to order or for value received, as those which are,” and made them negotiable.
    . The object of' the legislature in 1786, was to make bonds for money negotiable in the same way that bills of exchange and promissory notes were; and when they were negotiated to apply the statute of limitations between assignor and assignee. They say the statute shall apply to such bills, bonds, &c. “after the assignment or endorsement thereof,” because then the rights and liabilities accrue between endorser and endorsee, and upon these rights and liabilities th.ey were fixing the rule upon the statute of limitations to be the-same as that which prevailed between endorser and endorsee of promissory notes. Thejr did not intend to apply the statute between the endorsee and maker; if they had so intended they would have been more explicit. The expression that it shall operate in the same manner as it operates by law against promissory notes is very indefinite. How did it operate against promissory notes? The act of 1762 is wholly silent. It depended entirely upon, the form of the action under the act of 1715, ch. 27, sec. 5. If debt was brought by the assignee against the maker, that Statute did not apply. If case, it did; both these forms of action lay. Therefore there was no imperative bar of the statute between the assignee and maker of a promissory note; it depended wholly upon the election of the plaintiff, and if he sued in debt, it did not bar; aud if it is to have the same operation between the assignee and maker of bonds, it will not apply if debt is brought, but only in case.
    This same statute of 1786, gave an action upon the .case to the assignee of bills, bonds, &e. but this provision was founded in utter ignorance of the law. It was repealed in 1789, ch. 57, sec. 3, “because wholly inconsistent with the nature of such securities, and injurious to endorsees;” and an action of debt was given to the endorsees against the makers of such bills, bonds, &c.
    Now if the statute of 1715 only applied to promissory notes where case was brought, and did not apply if debt was brought, and the same rule should be applied to bonds, it follows, necessarily, that the act. could never be pleaded by the maker of a bond in bar of the suit of the assignee, since the act of 1789. And this has been the settled and uniform construction of the acts for between forty-five and fifty years. The whole profession have had but ope opinion on the subject. Thousands of cases have arisen. No case can be found where any lawyer-ever attempted to file the plea, or set up the defence. We rely upon cotemporaneous exposition.
    A new doctrine has lately sprung up under 21 James I, ch. 16. This court decided that the 3d section of that statute was in force in this Stale, and pleadable to an action of debt on a promissory note, whether brought by the payee or assignee. See Tisdale vs. Munroe, 3 Yerg. Hep. 321.
    This statute bars an action of debt upon any lending or contract without specially after six years.
    The legislature of 1786, did not intend to apply this statute to bonds, as it applies to notes, for this statute had no connection with the endorsement. It would be a most strained construction to say they intended to embrace bonds in the 3d section of the statute of James, when bonds are expressly excluded from that statute. The legislature of 1786 did not have the statute of James in their contemplation. They say, “the act of limitations of this State shall apply to bonds,” &c. Speaking with direct reference to the act of 1715, and identifying that, as the act which should apply to bonds; no language could have identified the act better than the language which they employed. They use the definite article, and call it the act of limitation of this State, in the singular number; they do not allude to all the statutes of limitation which might be in force and use in this State, but emphatically denominate it, the statute of limitation of the State, by which denomination this great statute was then, and from that time to this, has been as well known as by its chapter, date and title. It was cited by this general name as regularly and certainly as Lord Coke’s Reports were cited by the appellation of “the Reports.”
    This act of 1715, had a direct and sensible application to both notes and bonds after they were endorsed, that is between the endorser and endorsee; but still, for overcaution, the legislature of 1786 thought proper to make an express provision. This legislature feared that when the endorsee sued the endorser of a bond, the case would not be within the act of 1715. They knew that that act was pleadable between endorsees and endorsers of promissory notes, for the act of 1762 was then fourteen years old and in daily use, therefore, they provided in overcaution that the statute should have the same operation as to bonds after they were endorsed; the subject was then new, they had but an indistinct knowledge of it, and therefore spoke with ■ some confusion. But surely, when they introduce a rule to be applied when the rights and liabilities between endorsee and endorser arise, they intend the rule to apply to those rights and liabilities, and lit is doing violence to every rule of construction to apply it to any tiling else. See the rules laid down by Sir William Blackstone, 1 Com. 59, 60, 61.
    “Words,” says he, (3d Rule) “are always to be understood as having a regard to the subject matter, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. The law of Edward III forbids all ecclesiastical persons to purchase provisions at Rome; it might seem to prohibit the buying of grain and other victuals; but the statute was made to repress the nominations to benefices by the Pope of Rome, which were called provisions.”
    Upon the reason of the law, I would ask why pass a law to bar the endorsee of a bond from suing the maker? Such a law could be evaded in every instance by cancel-ling the endorsement and suing in the name of the payee. But what is there in reason which gives the maker of a bond the right to plead the statute against it in the hands of the endorsee, when it is admitted he cannot set up such a defence to it when sued by the payee? The only reason pretended is, he may have paid it to the payee. We answer, if he pays it to the payee after it is due, and does not have the payment credited upon the bond, he puts himself as much in the power of the payee as he could be in the power of an assignee; and more, for if sued by an assignee, he may call the payee as a witness-for it is against his interest; whereas, he could have no witness if sued by the payee. But no man ever pays money upon a bond without having it credited, unless there is great personal confidence, which is seldom abused, and if abused, it may be done as effectually without assignment as with it.
    The reason of the statute is most obviously in favor of the construction for which I contend; for there is the same reason for applying the statute between endorser and endorsee upon a bond, as upon a note.
    It is admitted on the other side, that the construction n0w contended for is entirely new; such a construction , j , , has never been put, nor attempted to be put upon thesd statutes. Nothing is better settled than the rule that thosd who lived about the time the statute was passed are the best judges of the intention of the makers. It has grown into a maxim that cotemporanea expositio est fortissimo, in lege. Therefore, the court will not lightly depart from the settled and uniform construction that has been put upon this act. 6 Bac. 384: 2 Inst. 11, 136, 181: 2 Mass. T. Rep. 475: 1 Cranch, 299: 6 Bac. Ab. 384, 385-6.
    It is considered most clear that if any statute applies, it is that of 1715, of three years, and not the statute of 21 James I, for that statute has no relation to endorsers and endorsees.
    If the provision in the first section of the act of 1786 j giving an action on the case to assignees of bonds, bills single, &c. applied to a suit against the maker of such bonds, &c. (which is doubtful, and it would violate the rules of construction so to expound it, 6 Bac. Ab. 384) such suit would be barred by the act of 1715, independent of the proviso in the 5th section.
    I suppose it cannot be disputed but that the legislature" might say that in all contracts hereafter to be made, and on which the action of debt might be brought at common law, the plaintiff shall not bring debt thereon, but an action upon the case. I suppose such action upon the' case would be within the act of 1715, but it will be as readily admitted on the other hand, that if such statute' should be afterwards repealed, and the action of debt revived, the statute could no longer be pleaded. The' statute of 1715 applies to the form of the action rather than the subject matter of the suit. If this be so, it follows, irresistibly, that if the statute would apply where? case is brought under the act of 1786, it will not apply where debt was brought under the act of 1789, chapter 57, section 3.
    
      : Jl. J. Marchbanks, for defendant in error.
    Actions upon promissory notes are required to be brought within* six years next after the cause of such action, and not after. Our act of assembly of 1786, ch. 4, section Í,makes bills, bonds, and notes under seal negotiable, and gives the endorsee the remedy of an action upon the case for the recovery of the money due him by the endorsement, which writing under seal, after endorsement, is-by this act to be governed by the same rules.and regulations that promissory notes are.
    The 5th section of this act contains the following proviso, viz: “the act of limitations of this State shall apply to all-bills, bonds, and other securities hereafter executed and made transferable by this act after the en-dórseme* thereof, in the same manner as it operates in law against promissory notes; this court, in the cáse of Tisdale vs. Munroe, 3 Yerg. Rep. 320, decided that the' statute of James was in force in this State, and that by it the action of debt upon a promissory note was limited to'six years.
    If an endorsee of a specialty, had brought an action upon the case upon his specialty agreeable to the act of 1786, more than six years after his cause of action, would it not clearly have been barred by the statute? The statute of 21 James I, limited all the actions upon the case to six, and our act of 17Í5 to three years. Neither of these statutes make any exception in favor of endorsees of specialties, consequently the action would, beyond all doubt, have been barred by the one or the other of these acts; it is not material, in this case, which of them would have applied.
    Then the only question (if it can be considered a question) in this case is, whether the subsequent statute of 1789, ch. 57, sec. 3, (Hay. and Cobbs, 232) giving to the endorsee a remedy by the action of debt instead of an action upon the case, will withdraw the specialty, after endorsement, from the operation of the statute of liin-italions; the act oí 17S9 does not negative any part of the act of 1786, except the words “action upon the case. ” Both of these statutes are affirmative, consequently, the latter does not repeal the former any further than it is repugnant to it. 1 Blac. Com. 89: 6 Bac. Ab. Title Stat. 378, letter D.
    A subsequent statute which institutes new remedies, • does not repeal the limitations of a former statute. Ib.
    
    To ascertain how far a latter law repeals a former, it is always necessary to know, in the first instance, the mischief the new law wished to remedy in the old; the new law upon this subject tells us the mischief it intended to remedy was the necessity of bringing an action upon the case upon endorsed specialities, and not the limitation imposed by the old law. 6 Bac. Ab. 383. If the court carries the act of 1789 any further than this, they will clearly defeat the intention of the legislature.
    Then the 5th section of the act of 1786 is yet in force. Does the limitation there imposed apply to an action by the endorsee against the maker, or only to actions instituted by the endorsee against the endorser? The latter description of actions were doubtlessly limited before the passage of the act of 1786; this act gave to specialities all the advantages of promissory notes after they were endorsed, and declared that they should be governed by the same rules and regulations, and at the same time all of the disadvantages; previous to that time, administrators were required to pay off debts due by speciality before those due by note. Before this, days of grace did not apply to specialties; since then they do. See Love vs. Nelson, Mar. and Yerg. Rep. 237. The object of the legislature was to put specialties, after endorsement, and promissory notes upon a perfect equality. The act of 1786, in so many words, limits the remedy of the endorsee against the maker, and not against the endorser, for that was limited before; the words employed in the act are express, plain and clear, and therefore must be understood according fo their natural signification. See 6 -m ^ Jr. _ . . , t •. 7 Bacon, 3S0. If the legislature had intended the limita-tien to apply only to the remedy of the endorsee against the endorser, would they not have so said? It would have been as easy for them to have so said, as to have said precisely to the contrary, as they did. See appendix to Angel on Limitations, 36.
    I do not pretend that there is any limitation to an action upon a specialty, as between the payee and maker; but, I do insist that there is to the remedy-of the endorsee of a specialty against the maker.
    One of the many reasons that induced the legislature to impose this limitation was, that the payee of the note might endorse it before it was due, and not notify the maker of that fact, who, for the want of this information, and believing the payee still held it, might pay to him every cent of the amount, and some six years afterwards might be called upon by the endorsee for payment the second time; and persons do frequently hold up notes for that length of time. The limitation of this statute effectually guards against this evil.
   CatroN, Ch. J.

delivered the opinion of the court.

Is a sealed bill single subject to be barred by the statute of limitations, if due for more than three years after assigned? '

It is contended the act of 1786, ch. 4, sec. 5, so pro - vides. The first section makes bills, bonds, and notes for money, with a seal, assignable and negotiable by endorsement and delivery, as promissory notes and inland bills of exchange were. But as there was no obligee to sue, it was doubtful if any form of action known to the common law would apply to enforce the assignee’s right; to obviate which doubt, it was provided, that the endorsee might maintain his action on the case for the recovery of the moneys due him upon the bond or note, notwithstanding; any seal thereto annexed, the same as if the bond was a negotiable promissory note.

The 5th section declares, “the act of limitations of this State shall apply to all bonds, bills, or other securities ■hereafter executed, made transferable by this act, after the assignment or endorsement thereof, in the same manner as it operates by law against promissory notes.”

By the act of 1715, ch. 27, sec. 5, actions upon the case are barred, if not brought within three years next after the cause of action. This act applied to the prescribed form of action, an'd rendered the 5th section of the act tof 1786 supererogatory.

The act of 1789, ch. 57, sec. 3, declares the remedy by an action on the case, inconsistent with the nature of the securities, sealed by the obligor; and that the resort to it frequently proved injurious, to the endorsee. To remedy which, it is provided he should thereafter have .and maintain an action of debt on the same in his own name, in the same manner the obligee could have done before the bond was assigned.

The present is such action of debt, to which the act of 1715, of limitations, does not apply, either in terms or by construction. 3 Yerg. Rep. 322.

But the statute of 21 James I, of six years, is also pleaded in bar, and the plea demurred to. The statute of James does not apply to the action in its terms, it bars actions of debt “grounded upon any lending or contract, without specialty.” Nor was this statute referred to by the act of 1786 ? It declares the act of limitations of this State shall apply. The act of 1787, ch. 5, had .adopted all the statutes theretofore in force in the colony, and made them the acts of that State.

When the remedy by action on the case was repealed in 1789, and a remedy given, not subject to be barred, the 5th section of the act of 1786 was repealed. So Judge Haywood informed the writer it had ever been understood in N. Carolina; and it is persuasive evidence that such has been the recognized law in this State, that this is the first time, within our knowledge, the bar has been . attempted to be interposed in our courts. The judgment iof the circuit court will> be reversed, and- the cause remanded to try the remaining pleas.

Judgment reversed.  