within the provision of the statute.1 In a case in the State of Maine, it appeared that the statute of 1821 provided, that certain actions shall be saved from the operation of the statute of limitations, where the action shall have been actually declared in before the expiration of the limit, and where there was a failure of service of the writ. The decision of the court was, that the statute of 1821 did not apply to actions on bonds, or other specialties.2 89. But where the whole of a bond has been paid by one obligor, and he brings assumpsit against his co-obligor for contribution, it was by Lord Kenyon considered doubtful whether the statute would be a good plea. He observed, in an action by the executor of one obligor against the co-obliger for contribution, that he had considerable doubts whether the statute of limitations attached on the case. The demand, he said, arose under a deed; and there had been a case in which a very considerable law authority had been of opinion that such a debt was entitled to the same limitation as the deed itself. In the year 1808, the point which was thus doubted by Lord Kenyon came before the Supreme Court of Massachusetts, and Parsons, Ch. J., said, he had considered the point, and was satisfied that such a plea was good. The action was assumpsit by a surety on a bond, who had paid part of the debt against the principal. He could not distinguish this case in principle from a case where the action may be brought by a surety on a promissory note against the principal, for not indemnifying him against the payment of the note. In such a case, he said, it was not denied, that the statute would be a good plea, because the reason assigned is, the action is not founded on a bond. In the case before him, the action, he thought, was not founded on a bond, but on a promise, or simple contract (although the executing of the bond as a surety is the consideration of the promise), and the breach of the promise, he held, was the not indemnifying the plaintiff against the payment of the bond, and is not the non-per 1 Clark v. Hopkins, 7 Johns. Ch. R. 556; Mayor, &c. v. Horner, Cowp. R. 102; Summerville v. Holliday, 1 Watts, (Penn.) R. 507. 2 Brown v. Houdlette, 1 Fairf. (Me.) R. 399. [In Maryland, actions on guardians' bonds as well as on bonds of executors and administrators are limited by statute, and the statute begins to run from the time of passing the bonds, that is, their approval by the Orphans' Court, and not from the filing or the date. State v. Miller, 3 Gill, (Md.) 335.] 3 Cole v. Saxby, 3 Esp. R. 160. formance of any contract to which the principal was bound by deed to the surety.1 90. The plea of the statute of limitations to an ordinary action of a legacy has never been known; it has long been a settled principle that the statute does not apply in such a case; and it has been ever so understood in England, both in the common-law and ecclesiastical courts.2 Chancery has refused to adopt the rule by analogy to the statute, because an executor stands in the relation of a trustee, and whilst the trust subsists, the statute has not been permitted to run.3 91. Where a debtor executed a warrant of attorney to confess judgment for a balance of account as then stated between them, the warrant, it was held, is not a specialty which takes the case out of the statute. But the plaintiff declared in this case upon an account stated, and had merely used the warrant of attorney, as an acknowledgment by the defendant, and not as a document upon which the action was founded.4 92. Though a promissory note is secured by mortgage, it still remains a simple contract; and its being recognized by a deed under seal does not change its character. The fact that real estate is pledged as collateral security for its payment, by way of mortgage, cannot render it a specialty.5 1 Penniman v. Vinton, 4 Mass. R. 276. In Maryland, a long time ago, specialties were expressly provided for. The statute of 1715, c. 23, enacts that no specialty whatsoever shall be good and pleadable, or admitted in evidence, against any person or persons of this province, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years' standing. See Richards v. Maryland Insurance Co., Cranch, R. 84; Watkins v. Harwood, 2 Gill & Johns. (Md.) R. 307; Carroll v. Waring, 3 Id. 491; Mullikin v. Duval, 7 Id. 355. 2 [Perkins v. Cartwell, 4 Har. (Del.) 270. But in Mississippi it is held that after demand, by a specific legatee, upon the executor, the term for payment fixed by the will having expired, the statute runs. Young v. Cook, 30 Miss. (1 George,) 320. Barred by statute in Louisiana in ten years. Nolasco v. Lurty, 13 La. An. 100.] 8 Thompson v. M'Gaw, 2 Watts, (Penn.) R. 161. And see post, Ch. XVI. § 172. [But after settlement between the executors and legatee, the trust is ended and the statute begins to run. Young v. Cook, 30 Miss. (1 George,) 320.] * Clarke v. Figes, 2 Stark. R. 234. [And see ante, § 73 5 Jackson v. Sackett, 7 Wend. (N. Y.) R. 94; Clarke v. Figes, 2 Stark. R. 234. [But though the note be barred, the lien of the mortgage remains good. Sparks v. Pico, 1 M‘All. U. S. C. C. (Cal.) 497; Nevett v. Bacon, 32 Miss. (3 George,) 212. A lien upon land, however, for the purchase-money, will be barred when an action for the purchase-money would be. Littlejohn v. Gordon, 32 Miss. (3 George,) 235. In New Hampshire, it is provided by statute that when a note is secured by mortgage, the plaintiff may sue on the note so long as he has a right of action on the mortgage; and this 93. By analogy to the statute of limitations, an artificial presumption has long been established, that where payment of a bond or other specialty was not demanded for twenty years, and there has been no circumstance to show that it was still acknowledged to be in existence, the jury are to presume payment at the end of twenty years. This doctrine has become so well settled, and has been so often recognized, that it is not requisite to cite any of the countless authorities which sustain it. It was not, however, a part of the ancient law, and, according to Mr. Justice Buller, originated with Lord Hale.1 94. In England, by the statute of 3 and 4 Will. IV. c. 42, it is now enacted, that all actions upon specialties shall be commenced within twenty years, and not after. But it is stated that if this statute be not pleaded, the fact of payment may still be presumed from lapse of time or other circumstances, which render the fact probable.2 statute includes notes secured by mortgages of personal property. Demerritt v. Batchelder, 8 Foster, (N. H.) 533. But with foreclosure and appropriation of the property pro tanto in payment, the right to sue on the note ceases. Cross v. Gannett, 39 N. H. 140. And where personal property, as cotton, is deposited by the maker of a promissory note, with the assent of sureties, under the agreement, that, when sold, its proceeds shall be applied to the payment of the note, it will not have the effect to withdraw the note from the operation of the statute of limitations, although the cotton is sold and its proceeds applied in payment, after the maturity of the note, and within six years before action brought. Lyon v. State Bank, 12 Ala. 508.] 1 Oswald v. Leigh, 1 Durnf. & East, R. 271. [And this presumption from lapse of time arises and may be a bar, whether the party setting it up has resided within the State or not. Sanderson v. Olmstead, 1 Chand. (Wis.) 190.] 2 Best on Presumptions, &c. 188. Where an acknowledgment has been made in writing by the debtor, charging him in direct terms, or by his agent, or if there has been a part payment, or part satisfaction, of the principal and interest then due, the action may be brought within twenty years next after the time of such acknowledgment, part payment, or part satisfaction. But such special matter must be replied, and in confession and avoidance. 3 and 4 Will. IV. c. 42. Mansel on Lim. 25. CHAPTER XI. PROMISSORY NOTES AND BILLS OF EXCHANGE. IN treating of the currency of the statute upon simple contracts, we commence with these written obligations, common and indispensable in commercial traffic. 95. It has been held invariably, that if a promissory note is made payable in money, on demand, the statute commences running from the date of the note; and that no special demand is necessary.1 The rule is the same if such note be payable with " 1 Norton v. Ellam, 2 Mees. & Welsb. (Ex.) R. 467; Presbrey v. Williams, 15 Mass. R. 193; Little v. Blunt, 9 Pick. (Mass.) R. 488; Codman v. Rogers, 10 Id. 112; Easton v. Long, 1 Missou. R. 662; [Caldwell v. Rodman, 5 Jones, Law, (N. C.) 139 ;] Ruff v. Bull, 7 Harr. & Johns. (Md.) R. 14; Peaslee, Administrator, v. Breld, 10 N. Hamp. R. 489. In Scotland, if a promissory note is payable on demand, it is held, that the time limited runs from the date. Stephenson contra Stephenson, 11 Fac. Coll. 639. The expression in the Scottish statute is, "from the term at which the sums in the note become exigible"; and this expression, it is held, will support the aforesaid construction. 1 Bell's Com. 305; [Wilks v. Robinson, 3 Rich. (S. C.) 182. From the delivery. Hill v. Henry, 17 Ohio, 9. And see post, § 103. A provision to pay a note at any time within six years," is a promise to pay on demand, though not in itself a note, and the statute runs from the date of the promise. Young v. Weston, 39 Me. (4 Heath,) 492. A note given as a part of the guaranty capital of a mutual insurance company, and payable at such times and in such portions as the directors may require, but the whole payable at all events, is due from its date, and is barred in six years. Bell v. Yates, 33 Barb. (N. Y.) 627; Colgate v. Buckingham, 39 Ib. 177. Howland v. Edmonds, 24 N. Y. (10 Smith,) 307, reversing S. C. 33 Barb. (N. Y.) 433. But see Hope Ins. Co. v. Weed, 28 Conn. 51. But a premium note given as the basis of assessments for losses, and payable in such portions and at such times as may be required to pay the losses, is due only upon loss and assessment therefor, and the statute does not begin to run till that time. Savage v. Medbury, 19 N. Y. (5 Smith,) 32; Howland v. Edmonds, 24 N. Y. (10 Smith,) 307; Sands v. St. Johns, 36 Barb. (N. Y.) 628; Howland v. Cuykendall, 40 Id. 320; Hope Ins. Co. v. Weed, 28 Conn. 51. And see post, 115, note. The right to assess the stockholders of an insolvent bank, to obtain funds with which to redeem its bills, accrues when the bank is temporarily enjoined from further doing business, if the injunction be afterwards made perpetual. Com. v. Cochituate Bank, 3 Allen, (Mass.) 42; and see post, § 142, note. C. being about to open an account with a banker, gave him a note signed by C., jointly with S., the defendant, for £ 200 on demand. At the same time they signed and delivered to the banker a memorandum, stating that the note was given as collateral for the banking account to be kept by C., and that the banker should be at liberty at any time thereafter to recover from them, or either of them, up to the full amount of the note, every sum which C. at interest.1 If the terms of such a note are, that it is not to draw interest during the life of the promisor, it will in such case support an action brought upon it immediately after it is given; and consequently the statute begins to run from its date, and is not postponed to the death of the promisor.? No days of grace are allowed on such note; and if a note have no date, the statute runs from its delivery. It has been held, also, that a receipt for a sum of money, by which the person receiving it undertook to return it, with interest," when called on" so to do, created a cause of action from its date, and against it the statute runs from that time. As interest might be demanded from the date of the writing in this case, the court reasoned, that it was due and payable on the day of its date. Where a receipt was given for notes any time time thereafter should owe his banker on account. The note was dated December 4, 1855. No demand was made till June 30, 1856, when a balance was found due the banker. Afterwards, half-yearly statements were made, C. as often as the state of the account required it, paying the balance against him, and receiving credit therefor, till February, 1861, when the account was closed, showing a balance due from C. of £ 175. In March, 1862, the banker brought suit against S., and it was held that the statute of limitations was no bar. Hartland v. Jukes, 1 Hurl. & Colt, 667. But the statute does not begin to run against the holder of an ordinary bank-note till demand and refusal at the counter. Bank of Memphis v. White, 2 Sneed, (Tenn.) 482. And when such a note is indorsed, demand and notice should be made within reasonable time, and the statute begins to run in favor of the indorser after the lapse of such reasonable time. Mudd v. Harper, 1 Md. 110. If a bank closes its doors and has no place of business, a demand is not necessary in order to sustain an action on its bills. The holder may be excused from making a demand. But the bank cannot say that the statute of limitations runs in its favor from the closing of its doors, and the holder of the note may bring his action, alleging the excuse for not making the demand, at his pleasure, as would have been his right after demand, if the bank had not closed its doors. Thurston v. Wolfborough Bank, 18 N. H. 391. But as a general rule, where an act on the part of the creditor is necessary to fix the liability of his creditor, the act must be performed within six years from the date of the contract. Morrison v. Mullin, 34 Penn. St. 12.] 1 Norton v. Ellam, supra. [But see contra. Payne v. Gardiner, 29 N. Y. (2 Tiff.) 146. The statute of limitations does not begin to run upon a claim until the principal, or at least some separate and distinct portion of the principal, becomes due and payable, and then only upon such distinct and separate portion. The interest accruing from year to year is not separated from the principal demand, and consequently the statute does not begin to run upon it until the principal is barred. Grafton Bank v. Doe, 19 Vt. (4 Washb.) 463; Ferry v. Ferry, 2 Cush. (Mass.) 92; Henderson v. Hamilton, 1 Hall, (N. Y.) Sup. Ct. 314.] 2 Newman v. Kettelle, 13 Pick. (Mass.) R. 418. 3 Smith v. Bythewood, 1 Rice, (S. C.) R. 245. 4 Perry v. Griffith, 1 Harr. & Gill, (Md.) R. 439. [A promise to return a specific sum on demand, borrowed in Pike County checks, was held to be barred by the statute of limitations, when no demand was made within six years from the date of the promise. Lafarge v. Jayne, 9 Barr, (Penn.) 410.] |