
    
      Thomas Wilks, adm’r. of Joseph Robinson, vs. James G. Robinson, ex’or. of Robert Grier.
    
    Against a note payable on demand, the Statute of Limitations begins to run from the date.
    
      Before Earle, J. at Chester, Spring Term, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of assumpsit on three promissory notes — one dated the 26th April, 1823, for $150, due at one day ; one dated the 30th January, 1824, for $302 12, due on demand; and the third dated 30th January, 1824, for $1079, due at ten days. The suit was brought March 3d, 1830. The statute of limitations was pleaded, and all the notes were barred, except for the evidence on the part of the plaintiff to take them out of the statute, which was to the following effect. Joseph Robinson, the plaintiff’s intestate, was the executor of one Elder, and had lent considerable sums of money of his estate to Robert Grier, the defendant’s testator, for which the large note was certainly-given — and perhaps the others also. A bill to account had been filed by the representatives of Elder against Robinson, and he employed Grier as agent to prepare and conduct his defence. On the 25th November, 1825, while on his way to consult counsel relative to that suit, Grier had a conversation with William Love, in which he stated that he had borrowed from Robinson upward of a thous- and dollars belonging to the estate of Elder, for which Robinson had his note, and he should be very much injured if Robinson did not gain the suit — meaning that he would have the money to pay. Love had frequently before heard him speak of these demands which Robinson had against him. At Spring court, 1825, he said that Robinson held other smaller notes on him, besides the large note. But no acknowledgment was proved subsequent to November, 1825. Robert Grier died 2d September, 1827, and Joseph Robinson died in September, 1829. Allowing to the defendant nine months after the death of his testator, four years did not elapse from the acknowledgment proved by Love, to the commencement of the action. That acknowledgment obviously related to the large note, and as to it, was clearly sufficient to prevent the operation of the statute. There was a payment credited on the note for $150, and the entry was proved to be in the hand-writing of the present defendant, who was the son of the plaintiff’s intestate. Having become interested as executor of Grier, and party to the suit, he could not be sworn, and the highest evidence that could be given was proof of his hand-writing ; and on that I left it to the jury to determine whether there was an actual payment, or whether it was a fictitious entry to save the statute. There was no ground to suspect the latter ; on the contrary, the confidential and friendly relation of the parties was adverse to such a suspicion. The jury found that it was an actual' payment, and being within four years, it saved the statute. The acknowledgment made to Love at Spring court, 1825, clearly related to these small notes, and would have been sufficient to save the statute as to them, but after deducting nine months allowed to defendant, more than four years elapsed before action brought. The note, therefore, payable on demand for $302 12, was barred, and the plaintiff should not recover on it. The jury were misdirected by the court in relation to the time when the statute commenced to run against that note. In the notice of appeal, that is not set down as a ground for new trial, but it was an error in point of law, which should not prejudice the defendant’s legal rights. From the evidence he was entitled to a verdict on that note, and a new trial should be ordered, unless the plaintiff will enter a remittitur on the record for the amount of it. On the other notes the verdict was right.”
    The defendant appealed, on the following grounds :
    1. Because the proof relied on by the plaintiff was not sufficient to take the notes out of the statute of limitations, and the jury erred in finding for the plaintiff on all three of the notes.
    2. Because one of the notes was made payable on demand, and no demand being made of the maker of the note in his life time, the demand on the executor would not supply that deficiency.
    3. Because the credit of eight dollars on the note for $150, was insufficient, under the proof, to prevent the bar of the statute.
    4. Because the statute commenced to run against the note payable on demand from the date of the note.
    5. Because the verdict was contrary to law and evidence.
    Ernes, for the motion.
    -, contra.
   Curia, per

Johnson, J.

There is nothing in the conclusion which the jury have drawn from the facts, so much at war with probability and common sense, as to authorize the court to award a new trial on that ground. The question, whether, when a note is payable on demand, the statute of limitations begins to run from the date of the note, or from the time of the demand, is one of some importance, and not without its difficulty. The statute, P. L. 102, provides that the action of assumpsit shall be brought within four years next after the cause of such action or suit, and not after and the question must be resolved by the inquiry, when did the cause of action arise? On general principles, I take it to be very clear that where the entire consideration of a promise to pay money is past, and there is no time limited for the payment, and nothing left for the promisee to do or perform, the debt is due in the instant on demand, and if not paid, an action lies presently. Thus if A. promise, in consideration that B. will deliver him a horse, he will pay B. so much, and B. deliver him the horse, he is bound to pay upon request, and if he does not, an action lies immediately; nor need B. make request, for A. knows that the debt is due, and that he is bound to pay, and he is in default if he fail to pay. This is not controverted, but it is said that a promise to pay on demand imposes an obligation or duty on the promisee to make the demand, and hence it is concluded that no action lies until demand made, and consequently, the statute will not begin to run until demand made. That is the case of every debt where no time is fixed for the payment. The debtor ought to pay without request, and is bound to do it upon request. It is an obligation implied by law, without any express stipulation to that effect, as was said in Collins vs. Denning, 3 Salk. 227. The plaintiff there declared on a promise to pay on demand, and that he had demanded it on a certain day, but defendant refused to pay. Defendant pleaded non assumpsit infra sex annos, and upon demurrer to the plea, it was insisted that it was ill, for it should have been actio non accrevit infra sex annos, because the duty arose from the demand, and not from the promise. But this objection was not allowed, for payment upon demand is no more than what is implied.by law. So in Reynolds vs. Davies, 1 Bos. & Pul. 625, in an action by the indorsee against the maker of a promissory note, it was held that it was not necessary in the declaration to allege or to prove notice of the indorsement to the maker ; and C. J. Eyre said “ the promise to pay is to the payee or his order; immediately then on the order being made to the indorsee, the promise attaches, nor can we add the qualification of notice to a promise which -was not originally qualified with that circumstance.” Nor is it necessary in a declaration on a note payable on a day certain, to lay any request at all, for that is implied from the precedent debt, and the bringing of the action. The action itself is a request in law. In Harrison vs. Cammer, 2 McG. 246, it was held that an action brought on the day of the date of a note payable on demand, was well brought, although no demand was made ; the bringing of the action was itself a sufficient demand. In Chit, on Bills, 537, and Ang. on Lim. 182, the rule that the statute begins to ran on a promissory note payable on demand, from the date, and not from the demand, is expressly recognized ; and the point was expressly ruled by the Constitutional court in Woodward vs. Drennan, in 1811, (1 vol. MSS. 430) cited in Harrison vs. Cammer, under the title of Woodward vs. Dunner — and I have looked in vain through our own and the English cases for any direct authority to the contrary. The converse is attempted, however, to be sustained by analogy drawn from the cases in which it has been held that a note payable on demand will not bear interest until demand made, and the cases of Cannon vs. Beggs, 1 McC. 370, and Schmidt vs. Limehouse., 2 Bail. 276, are full upon this point; and certainly there is some force in it. According to general principles, a liquidated debt bears interest from the time it is due, as an account stated, and the statute begins to run from that time, because there is a cause of action. But on looking into the doctrine in reference to this case, I am very much disposed to think, that although there is some diversity, the better opinion is, that they bear interest from the date ; and although I may be disposed to follow these cases as a precedent to which the community can accommodate themselves, it is a sufficient reason for not following up the principle in relation to the statute. It was apprehended, and I fell into that notion upon the first view of the case, that bank notes would be affected by the statute if it began to run from the date. But in some instances, the notes are made payable at the Bank, and in those cases their pro-sentation there is necessary to entitle the holder to sue. Sanderson vs. Bowes, 14 East. 500. There is still a better reason ; it is the universal usage of the banks to issue and re-issue their notes as often as they may have occasion, and every re-publication is a re-assumption of payment; and it is impossible that the holder can know from the date when it was last issued. 16 Mass. R. 65. It is therefore ordered that a new trial be granted, unless the plaintiff enter a remittitur for the amount of the note for $302 12.

Harper, J. concurred.

O’Neall, J.

dissenting. I differ from my brethren in relation to the time at which the statute of limitations begins to run against a note payable on demand. The statute provides that the action of assumpsit shall be brought within four years next after the cause of such action or suit, and not after.” P. L. 102. The inquiry, to ascertain when did the statute begin to run, is, when did the cause of action accrue? The answér of the last is the answer of the former. The cause of action, on a note payable on demand, accrues from a demand made in fact, or one constructively made in law; of the latter description is a demand made by the institution of a suit. Were it not that this has been over and over again ruled as settled law, I should be disposed to say that this was not such a demand as would sustain the action. For although it is certainly a demand of payment, yet it is a demand made after action brought, and ought not, in legal contemplation, to be evidence that the defendant had refused to perform his contract before action brought. But absurd as it appears to be, it is clear law, that the commencement of the suit is a legal demand of payment sufficient to maintain the suit, which is itself the demand. When did the cause of action accrue on a note payable on demand ^ where the only evidence of demand is the commencement of the action. I answer, from the entry of the writ in the sheriff’s office. I admit that in the case of Woodward vs. Drennan, referred to in the opinion of my brother Johnson, it was held that the statute of limitations began to run from the date of the note. But that case was decided twenty-one years ago, and has never been made public. In the mean time, other decisions have been made, which I hold have in effect overruled it. The case of Sinclair & Kiddle vs. the Administrators of Price, from the Court of Equity for Spartanburgh district, was decided by us in Dec. 1830, in which we held that the statute of limitations did not commence to run against a note payable on demand, from its date. The point was adjudged without argument or illustration, but still I feel myself as much bound by that opinion as if a volume had been written. The cases of Cannon vs. Beggs and Schmidt vs. Limehouse, have decided, if it is possible for our own adjudged cases to decide any thing, that a note payable on demand will not bear interest until a demand actually or constructively made. The case of Schmidt vs. Limehouse was fully argued, and was decided after a careful examinatioñ of the case and all the authorities ; and I have no hesitation in saying that the decision is right, both on reason and authority. If this be law, how can it be that the cause of action can accrue before a demand made 'l On a liquidated contract, I had always supposed that interest accrued from the time the sum stipulated to be paid was due, and generally on all contracts (except promissory notes and bills of exchange, which are allowed three days of grace,) that an action might be brought as soon as due, The time when the cause of action accrues, and when interest commences, must in general be the same. The case of Wright vs. Hamilton, 2 Bail. 51, is an authority in my favor. That was an action for money had and received by the defendant as sheriff of Abbeville, for the use of the plaintiff. It was held, and I think most clearly demonstrated, by my brother Johnson, that the statute did not commence to run until a demand made. In that case, it cannot be doubted that the plaintiff had as much right to demand payment the instant that the sheriff received the money, as the payee of a note payable on demand, has to demand payment the instant that it is signed. That, too, was a present debt, “ due in the instant on demand, and if not paid, an action lies presently,” after demand actually made. In reasoning upon the case, my brother Johnson fixes the time when the cause of action accrued, by fixing the time when interest should commence to be computed ; see page 52. Thus recognizing the time from which the cause of action accrues, and the time when interest is to commence, as identical. Under our statute of limitations, I think that the plea of non assumpsit infra quatuor annos is a mis-pleading of the statute — it should be actio non accrevit infra quatuor annos ; for the statute runs from the accrual of the cause of action, and not from the time the promise is made. If this had been always kept in mind, it would have prevented many of the erroneous decisions in England and in this State, as to the effect of promises to prevent the operation of the statute of limitations, and to correct which the judges in England and in this State have been lately compelled to retrace their steps. I.think, with great deference to and for the opinion of my brethren, that the case under consideration looks more to the mistaken form of the plea, non assumpsit infra quatuor annos, than it does to when the cause of action accrued. For why was it ever thought necessary to be ruled that the bringing of the action was a demand of payment, if the law implied a demand from the fact of the note being an acknowledgment of a present debt? The very ruling of such a point shews that a demand, actual or constructive, was necessary to enable the party to sue. It is clear that it is, for it is the stipulation of the parties — and their contract, I hold, must be either actually or constructively complied with by the plaintiff before he can sue. I regret the conclusion of my brethren in this case, more on account of its effect on bank notes than any other. To save them from the operation of the rule of this case, we shall be compelled to review this decision, and make some distinction which may prevent its effect. For it is a mistake to suppose that they are universally made payable at the bank. Some are, and some are general promises to pay on demand — -as for example, the notes of the Planters and Mechanics’ Bank, and the Commercial Bank at Columbia. I have one of the former before me, dated in 1823, payable on demand, without saying where the demand is to be made. If the decision in this case is right, is not that note barred by the statute of limitations 'l It is clear it must be, ■ unless we make some distinction to save it. And I am persuaded we must do it, for it would be an outrage on the common understanding with which bank notes are put into and suffered to remain in circulation, that the statute of limitations should run from their date. But the distinction which we shall then be compelled to make will be without any legal difference between the two cases to sustain it, and must be justified by the “special circumstances,” which may be a good excuse in foro conscientice, but is no reason for a legal judgment. Neither will it do to say that the re-issuing of a bank note is a new assumpsit, which prevents the operation of the statute of limitations. How is the day on which it is re-issued to be ascertained ? It can rarely be proved. In legal intendment, the note is regarded as issued on the day on which it bears date — and unless the fact of being re-issued can be proved, it follows that no other time can be fixed, and the statute must, according to the principles of this decision, commence to run from the date. I think the verdict was right, and that the motion for a new trial ought to be dismissed.  