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-obligor 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-performance of any contract to which the principal was bound by deed to the surety.2

§ 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.3 Chancery has refused to adopt the rule by analogy

1 Cole v. Saxby, 3 Esp. R. 160.

2 Penniman v. Vinton, 4 Mass. R. 276. In Maryland, a long time ago, specialties were expressly provided for. The statute of 1715, ch. 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. 8 Cranch, R. 84; Watkins v. Harwood, 2 Gill & Johns. (Md.), R. 307; Carroll v. Waring, 3 id. 491; Mullikin v. Duval, 7 id. 355.

8 [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.]

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.1

§ 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.2

§ 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.3

§ 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

1 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.]

2 Clarke v. Figes, 2 Stark. R. 234. [And see ante, § 73.]

3 Jackson v. Sackett, 7 Wend. (N. Y.), R. 94; Clarke v. Figes, 2 Stark. R. 234. [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 statute includes notes secured by mortgages of personal property. Demerritt v. Batchelder, 8 Foster (N. H.), 533. 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.

4 Oswald v. Leigh, 1 Durnf. & East, R. 271. [And this presumption from lapse of

§ 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.1

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.

1 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 interest. 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

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; 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. 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.]

2 Norton v. Ellam, supra. [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.]

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.2 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 to be collected and applied to a note, in suit, it was held, that the statute runs from its date.4

§ 96. Although the statute begins to run against a note payable on demand, from the day of its date, it does not so against a note given so many days after demand. In the latter case, it commences running only from the time of the demand.5 The demand must be made, however, in a reasonable time from the time of the date. What is to be considered a reasonable time for this purpose does not appear to be settled by any precise rule, and must depend on circumstances. If no cause for delay can be shown, it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand, that there is for hastening the commencement of the action." Where a note was payable twenty-four months after demand, and it was first presented for payment within six years of the action, it was held, that the statute was no bar, though the note had been made more than six years before the action.7

1 Newman v. Kettelle, 13 Pick. (Mass.), R. 418.

2 Smith v. Bythewood, 1 Rice (S. C.), R. 245.

3 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.]

4 Swift v. Lanier, 1 Hill (S. C.), R. 31.

5 Wenham v. Mohawk Ins. Co. 13 Wend. (N. Y.), R. 267; Thorp v. Combe, 8 Dowl. & Ry. R. 374. See also, Richman v. Richman, 5 Halst. (N. J.), R. 114; Little v. Blunt, and Codman v. Rogers, supra.

6 Per Wilde, J., who delivered the opinion of the court, Codman v. Rogers (Bill in Equity), 10 Pick. (Mass.), R. 120. In this case the plaintiff had lain by for seventeen years; and no sufficient reason was suggested in the bill in equity for the long delay. 7 Thorp v. Booth, Ry. & Mo. R. 21 (Eng. Com. Law R. 468).