without consulting the defendant. W., in 1820, voluntarily paid K. one half the sum the latter had paid in discharge of the note. This payment was made without the knowledge of the defendant, who contended, that, ten years having elapsed since he had known or heard any thing of the transaction, he might rely upon the statute. The court said: "In this case, when K., in 1816, paid the debt, he at once became entitled to an action against W. to compel him to contribute, and might have maintained an action for that purpose at any time within six years after the payment. But it was not necessary that W., or his executor, should be compelled by suit to pay, in order to render the defendant liable to them." Therefore, the court held that when W. (or the plaintiff as his executor) paid to K. one half of the sum which the latter paid, the right of action accrued; and consequently there was no pretence that it was barred by the statute. Though a judgment be

1 Odin v. Greenleaf, 3 N. H. 270. [So where an agent makes a sale of goods for his principal and the goods turn out to be worthless, whereby the agent is subjected to loss, the statute begins to run against the agent's claim upon the principal for indemnity from the time he is damnified or subjected to the loss. Legare v. Frazer, 3 Strobh. (S. C.) 377. In Pennsylvania, it is provided by statute, that when an indorser is compelled to pay a note to a bank of which the maker is a stockholder, he may, upon giving notice that he claims the stock and dividends of the maker, in an action for money had and received, recover of the bank the dividends so retained. Under these provisions it is held, that the note is the meritorious cause of action, and the statute begins to run when the note becomes payable. Farmers' Bank v. Gilson 6 Barr (Penn.), 57. And the fact, that by a contract of partnership, under seal, between the maker and indorser, it is agreed that the note shall be put into the concern as a part of the maker's contributive share, does not exempt it from the operation of the statute, there being no agreement by the maker to defend the indorser against the payment of the note. Ibid. And where one who is not a party to a note divides with the maker the consideration received therefor, and promises the maker to pay his half of the amount when the note becomes due, the statute begins to run against a suit on the promise as soon as the note becomes due; and not from the time of payment, if afterwards paid in full by the maker. Joiner v. Perry, 1 Strobh. (S. C.) 76. Where one agrees to pay the debt of another, the statute begins to run from the payment, and not from the agreement. Moore v. Caldwell, 8 Rich. Eq. (S. C.) 22. A was indebted to B, and C agreed to pay the debt, but afterward refused, and A was compelled to pay it; and it was held, that, as between A and C, the latter was principal and the former surety, and that the statute began to run against A's claim upon C from the time of the payment of the money, and not from the date of the agreement or from the refusal of C. to pay B. Ponder v. Carter, 12 Ired. (N. C.) 242. A owed B, and in settlement between A and C, C was allowed a credit for what A owed B. B demanded the money of C, and on refusal brought suit. Held, that the statute began to run from the demand. Carroway v. Cox, Busbee, Law (N. C.), 173. So where upon a compromise of a suit between A and B, the latter agreed to pay A's attorney, but neglected to do it, and A was obliged to

recovered against a surety, and he be imprisoned upon a ca. sa., still that is no satisfaction to the creditor for his debt, or discharge of the principal debtor, and therefore does not entitle the surety to call upon the principal for money paid to his use.1

132. This rule, of course, applies to various separate payments made by a surety in behalf of his principal, or of his co-surety; and being entitled to sue for each payment as he makes it, the statute may have barred the right of recovery upon the prior payments and not upon the later payments.2 These rules were applied in the following case: Where three parties, A, B, and C, of whom A and B were sureties for C, promised jointly and severally to pay E £300, A having paid the whole, namely, £280, part thereof, more than six years before the action, and £30, being the residue of principal and interest, within that time, it was held, in an action by A against B for contribution, that he could only recover the £30, as the statute barred the rest, because the right of action attached as soon as the plaintiff had paid more than his proportion. And it was also held, in an action on the same note against C, the principal, that the statute was a bar to all except £30, as the plaintiff had a right of action against the principal the moment he paid any thing, for so much money paid to his use.

133. A cause of action against the representatives of a co-surety, for contribution, accrues when, and not before, one surety pays the debt of the principal. One of two sureties who has paid the debt of his principal, and files a bill in equity for contribution, against the heirs of his co-surety, and causes them all, who are within the reach of the process, to be summoned, is entitled by the Revised Statutes of Massachusetts to a decree against them severally for such equal sums as amount, in the aggregate, to a moiety of what he has thus paid, though there are other heirs who are not summoned.5 And so, if one of the heirs thus summoned die pending suit, his administrator is to be summoned in, and the same decree

pay it, it was held, that A's right of action accrued against B when he paid the money, and no notice to B was necessary. Deaver v. Carter, 12 Ired. (N. C.) 267. And see also Douglas v. Elkins, 8 Foster (N. H.), 26.]

1 Rodman v. Hedden, 10 Wend. (N. Y.) 500 (per Sutherland, J.); Powell v. Smith, 8 Johns. (N. Y.) 249.

2 Butler v. Wright, 20 Johns. (N. Y.) 367. See also Davies v. Humphreys, 6 Mees. & Welsb. (Ex.) 153; [Knotts v. Butler, 10 Rich. Eq. (S. C.) 143.]

3 Davies v. Humphreys, supra.

5 Wood v. Leland, 1 Met. (Mass.) 387.

4 Revised Statutes, c. 70.

will be passed against him that would have been passed against his intestate.1

134. If a surety, as, for example, an accomodation indorser, pays a judgment obtained against him, by giving his promissory note, which is accepted by the plaintiff in satisfaction of the judgment, and in full of his claim, the cause of action by such surety against the principal to recover as for money paid is perfect; and in such case the statute commences running, though the note remain unpaid. Therefore, under the circumstances of a given case, a plea of actio non accrevit will bar a recovery by the surety against the principal, although, counting from the time of the actual payment of the note given, the statute would be no bar.2

135. Seizure of goods or lands upon execution, or a sale of them by the sheriff, is not ipso facto a payment of the judgment upon which the execution issued; nor can it be considered paid until there be an actual payment, or a final appropriation of the money, so as to enable the defendant to resort by action to a codefendant or a co-surety for contribution; and in such cases the statute then only begins to run.3

I Ibid. [And if one of two sureties is sued by the payee of a note before the action is barred by the statute, and judgment is rendered after the statute would have been a bar, the surety who pays the judgment has an action over against his co-surety for contribution any time within six years from the time of payment. Crosby v. Wyatt, 10 Shep. (Me.) 156. And see also ante, § 89. So he may sue the principal, although, by failure to join the principal in the suit against the surety, the principal is discharged. Reid v. Flippen, 47 Ga. 273, overruling Turner v. McCarthy, 42 Ga. 491. If one of several joint debtors dies, the right to proceed for the recovery of the debt against his representative does not accrue until the survivors become insolvent or irresponsible, and the statute does not begin to run against such action till that time. Leake v. Lawrence, 11 Paige (N. Y.), Ch. 80; s. c. in Court of Errors, 2 Denio (N. Y.), 577.]

? Rodman v. Hedden, 10 Wend. (N. Y.) 498; Barclay v. Gouch, 2 Esp. 571. [A guaranty that a note payable at a future day "is due, and that the maker has nothing to file against it," is to be considered as referring to the time when the note arrives at maturity, and from that time the statute of limitations begins to run. Adams v. Clarke, 14 Vt. 9. The liability of the drawer or indorser of a bill of exchange accrues when the bill is dishonored by the acceptor. Hunt v. Taylor, 108 Mass. 508. But it has been elsewhere held that where a subsequent indorser pays the note, the statute runs in favor of the prior indorser from the time of payment. Pope v. Bowman, 27 Miss. (5 Cush.) 194.]

3 Lytle v. Mehabby, 8 Watts (Penn.), 267; Rodman v. Hedden, supra. [In Massachusetts, where it is provided by statute that an equity of redemption may be sold on execution, and that a bill in equity to redeem the same may be brought within one year after the sale, the time is to be reckoned from the actual sale, and not from the commencement of the levy. Houghton v. Field, 2 Cush. (Mass.) 141. The ten

ant is liable to his landlord for mesne profits when he surrenders possession, and from that time the statute runs. Doe v. Jones, 6 B. Mon. (Ky.) 388. Where a mortgage of real property is assigned as collateral security for a debt other than the mortgage debt, and foreclosed by the assignee, by whom the land is afterwards sold, the debt to secure which the assignment is made is not paid by the foreclosure, but only by the actual sale and conversion into money; and where the debt so secured is that of another person, the right of action of the mortgagee against him, as for money paid to his use, is not barred by the statute until the expiration of six years after such sale and conversion. Brown v. Tyler, 8 Gray (Mass.), 135. An action to recover land sold for taxes must be brought within two years from the time when the deed is recorded. Leffing well v. Warren, 2 Black (U. S.) 599. In Iowa the statute begins to run in favor of a tax title when the deed is recorded. Douglass v. Tullock, 34 Iowa, 262. When collateral is given for a debt, this will be presumed to be due on demand, if it does not otherwise appear. Espinoza v. Gregory, 40 Cal. 58. A statute limiting the time for suing out a mandamus begins to run from the time when the facts creating the duty are complete, and not from the demand and refusal; otherwise, by delaying demand and refusal, the plaintiff might suspend the operation indefinitely. Prescott v. Gonser, 34 Iowa, 175. Where A agrees to pay such a sum as the referee shall allow him on a claim in set-off, the right of action accrues for the amount allowed when judgment is entered on the record, and the fact that judgment was afterwards reversed does not affect the rights of the promisee, as his rights became vested on the entry of judgment. Chaplin v. Wilkinson, 62 Barb. (N. Y.) 46. For other cases illustrative of the question as to when the cause of action accrues, see post, Ch. XXVII.]

CHAPTER XIII.

TORTS QUASI EX CONTRACTU.

136. It has been before shown, that the action of assumpsit will, in all cases, lie for damages resulting from torts quasi ex contractu, such as malfeasance, misfeasance, and non-feasance.1 The rule in such cases is, that the cause of action arises immediately on the happening of the default, and is not postponed to the damage thereby occasioned. It is true, that Lord Kenyon said, in an action against an attorney for a defect in the memorial of an annuity, arising from his negligence, by which the plaintiff lost the benefit of his annuity, and the money paid for the same, that the inclination of his opinion was (though he had not made up his mind upon it), that the plea of the statute was insufficient, on the ground that the damage was within six years.2 But the law has since been well settled in England, agreeably to the rule above stated, and in this country also. Thus, in England, in an action against an attorney for negligence in not investing the plaintiff's money on a good security, the default having happened more than six years before the action was brought, it was held that the remedy was barred, though the discovery of the default was within six years. The same principle was enforced in a case in the Supreme Court of New York. In this case, the defendant had

3

1 See ante, Ch. IX. § 71.

2 4 Esp. 18.

Brown v. Howard, 4 Moore, 508; s. c. 2 B. & Bing. 73. Other English cases, Howell . Young, 5 Barn. & Cres. 259; Battley v. Faulkner, 3 Barn. & Ald. 288. [Cook v. Rives, 13 S. & M. (Miss.) 328. Where a person has been guilty of negligence or a breach of duty, the gist of the action is the negligence or breach of duty, and not the injury consequent thereon. The statute, therefore, begins to run from the negligence or breach, whether the action in point of form be case or assumpsit. Thurston v. Blackinton, 36 Ind. 501; Northrop v. Hill, 61 Barb. (N. Y.) 136; Argall v. Bryant, 1 Sandf. (N. Y.) Sup. Ct. 98; Sinclair v. Bank, 2 Strobh. (s. c.) 344; Ellis . Kelso, 18 B. Mon. (Ky.) 296; Lathrop v. Snellbaker, 6 Ohio (N. s.), 276; Gustin v. Jefferson, 15 Iowa (7 With.), 158. The right of a town to recover damages of a railroad, incurred by reason of the negligence of the latter, accrues when the liability of the town is fixed and ascertained. Veazie v. Penobscot R. R., 49 Me. 126. And see post, §§ 139, 181, 186, 298, 306, and ante, § 117.]