
    ELISHA WEST VS. JOHN MURPH, ADM’R OF KINSEY WEST, DECEASED.
    Where the action is for a collateral sum to be paid on request, aDd by the terms of the contract the plaintiff is to request performance or payment, the request becomes parcel of the contract, and should be specially alleged and proved.
    ' A mere depository, a naked bailee, is not liable to an action until refusal to deliver up on demand.
    
      Before Earle, J. at Spartanburg, Spring Term, 1837.
    The following report was made by the presiding judge :
    Debt on a single obligation, of which this is a copy ; “ Sept. 3d, 1824; This is to certify that I, Kinsey West, of the State and District aforesaid, have received of Elisha West twenty-seven hundred and seventy-five dollars in safe keeping, which I bind myself, my heirs, executors, administrators, or assigns, to return or pay over to said E. West, of the sapie State and District aforesaid, is here called for, either by himself, his heirs, executors, administrators, or assigns; as witness my hand and seal, .the day and date above. (Signed,) Kinsey West, [l. s.]
    The counsel for plaintiff offered proof of the hand-writing, and closed. A motion was made on the part of the defendant for non-suit, which I was about to grant, when, at. the instance of plaintiff’s counsel, 1 petmitted him to offer further proof. He called a witness who testified as follows : that he heard the defendant, after he had administered, say that Elisha West had a claim, or had laid a claim, to such an amount; but he did not mean to pay it, as he did not think plaintiff had any claim to more than his distributive share of the estate, because West had called on him and demanded his distributive share without demanding more ; and said that he (plaintiff,) did not wish to come back again from Georgia for so small an amount.
    The plaintiff had declared on the paper, as a single obligation, to pay money on^demand — and alleged no special demand. The breach assigned, was, that “the intestate, in his lifetime, and the defendant, administrator, since his death, had not either of them, although often demanded, paid the said sum of money.” On the motion for non-suit I was of opinion that the defendant’s testator, being a mere depository without reward, was not liable to an action without special demand first made ; that it was indispensable to allege such demand in the declaration, distinctly and substantively, with time and place, in order that the court might judge, as matter of law, whether it was sufficient or not to charge the defendant, and to prove it as laid; that no demand being alleged, and none being proved, the plaintiff could not recover. The motion for non-suit was granted ¡ which the plaintiff moves to set aside, on the foiliwing grounds.
    1. Because, from the nature of the paper sued on no, special demand was necessary to be alleged in the declaration.
    2. Because, if such demand were necessary, the defendant could only take advantage of the defect by special demurrer, and not by motion for a non-suit under the general issue.
    Bobo, for the motion. A, W. Thomson, contra.
   Curia, per

Eaule, J.

A distinction has always been taken between those cases where the promise is made, or the undertaking is implied in consequence of a precedent duty or debt, and thuse cases where, by the express or implied terms of the contract, the obligation to pay or perform is to arise only by request. The former class of cases embraces all actions for goods sold and delivered, money lent, work and labor performed, creates eo instante the duty and liability to pay, and implies the undertaking to do so sufficiently to maintain an action, and the writ is a demand ; as in Wallis v. Scott,-W. 88 : “ If I promise a tailor, that in consideration he will make me a suit of clothes, I will pay him so much, there needs no request, for as soon as he has done his part there is a right vested in him.” And in the case of a bill or note payable on demand, the same reason applies. The instrument imports a consideration, a precedent debt, as in Capp v. Lancaster, Cro. Eliz. 548 ; “ a duty maintenant, and therefore there needs not any request, as in other cases where the plaintiff hath not any cause of action until a precedent act done by himself.” But in the other class of cases it is otherwise. Where the action is for a collateral sum, to be paid on request, where, by the terms of the contract, the plaintiff is to request performance .or payment, the request becomes parcel of the agreement; it forms a condition precedent; it is a traversable fact, and should be alleged specially, with time and place. ■The omission of such'averment is matter of substance ; it would be bad on general demurrer, and is not aided by verdict; and the general averment, “ although often requested,” is not enough. Com. Dig. Pleader, C. 69. Cro. Eliz. 85.

It is equally necessary to prove the special request as laid — for no action arises until the request. Nothing can be more explicit than the terms of this agreement. There was no precedent duty or existing debt; none arose at the instant; and the liability was to arise when the money should be called for. This would be true from the terms of the contract, if the intestate had received a compensation. But he was to receive none ; a mere depository, a naked bailee ; and in such a case it has never been held that he would be liable to action until refusal to deliver upon demand. And this would be true if it were not so expressed in the contract. It would be implied from the nature of the undertaking; Story, Bail. 82; 9 Johns. Rep. 361. The declaration was bad for want of the averment of a special request. The vague declaration of the administrator amounted to no more than that he understood there was such a claim, not that it had been demanded of him or of his intestate.

The motion is refused.

Gantt, Richardson, Evans, and Butler, JJ. concurred.  