
    Middleton Joiner, v. James W. Perry.
    Where one, not a party to a note, divides with the maker, the consideration for which it is given, promising to pay his half of the amount when the note becomes due, the Statute of Limitations will begin to run in bar of a suit for the breach of this promise as soon as the note becomes due and is unpaid; nor will its subsequent payment in full, by the maker, raise an implied assumption to him, by the party committing the breach, for money paid and advanced.
    Tried before Mr. Justice Wardlaw, at Lancaster, Fall Term, 1846.
    Counts for cattle sold and money paid. Pleas, general issue and Statute of Limitations.
    In 1839, at an executor’s sale by Tiiman Dixon, one Jackey Perry, father of the defendant, bid off cattle to the amount of $52, and soon afterwards, according to the terms of the sale, a note for the amount was given to Dixon, payable in 1840, and signed by the plaintiff and Jackey Perry. Dixon was not informed of any arrangement between the parties concerning the cattle: but according to an understanding between themselves, the cattle were driven to the plaintiff’s, and there divided between the plaintiff and the defendant; the defendant saying, when he received his share that he would pay his half of the note.
    The plaintiff paid half of the note in 1842, and the other half remaining unpaid, suit was brought by Dixon against the plaintiff and Jackey Perry in 1843, and collection made by the Sheriff of the remainder of the note from the plaintiff in April, 1846. The plaintiff soon afterwards brought this suit.
    The presiding Judge thought that the plaintiff’s cause of action arose when the note became due; and decreed for the defendant, upon the Stat ute of Limitations.
    The plaintiff appealed. Because his Honor erred in ruling, it is submitted, that the action was barred by the Statute of Limitations, as the contract between the plaintiff and defendant was, that defendant was to pay to Dixon on the note for the cattle that he got upon the partition, as it is submitted that the action could not be brought by plaintiff, until he, plaintiff, bad paid and satisfied the note: or at least until a judgment was obtained a gainst plaintiff for the note by Dixon; therefore the action was not barred, and his Honor should have ruled so.
    Clinton & Caston, for the motion.
    Weight, contra.
    
   Waudlaw J.

delivered the opinion of the Court.

In consideration of the cattle sold to him, the defendant made hi s promise to the plaintiff that he would pay one half of the note which the plaintiff and his surety had previously given to Dixon. Such a promise unknown to Dixon gave no right to Dixon against the defendant, and not being made to the person to whom another was answerable, is not within the Statute of Frauds, (11 Ad. & Ellis, 438.) Whether by the promise the payment was to have been made to Dixon or to the plaintiff, the promise was broken when the note became due and was not paid. Then, or upon the expiration of a reasonable time afterwards, the plaintiff might have sued for breach of the promise. The measure of damages in such suit would have been the real value of half the note; if the plaintiff had not paid to Dixon before his suit, in reference to the Statute of Limita, tions, the inquiry would have been, when did the breach of the promise take place, not when did special damage accrue; and if the plaintiff and his surety had been unable to pay, no substantial loss would have accrued from the breach of the special contract, and no substantial recovery could have been had. By postponing the payment, for which Dixon could look to him only, the plaintiff could not prevent the operation of the Statute of Limitations upon the promise which the defendant had made and had broken; Chitty on Cont., 637. The subsequent payment of money by the plaintiff to Dixon, (although for that amount of money the defendant was liable to the plaintiff) could raise no implied assumpsit by the defendant to the plaintiff for money paid and advanced, because there was no liability ofthe defendant to Dixon, and therefore no request by defendant that plaintiff should pay for him; Chit. on Con., 472. The only remedy of the plaintiff was for cattle sold, or on his special contract; and either of these is barred by the Statute of Limitations.

The motion is dismissed.

Richardson J., Evans J., and Frost J., concurred.  