
    Osborn, Adm’r, v. The Portsmouth National Bank.
    
      Demurrer to petitiin — On ground that came of action is barred by statute of limitations — Petition must show whole cause of action is barred — Bar by statute of limitation not presumed.
    
    1. To warrant the sustaining of a demurrer to a petition on the ground that the cause of action is barred by the statute of limitations, the petition must show on its face that the whole cause of action is so barred. If the petition is silent as to time, as to any separable part of the cause of action, the demurrer should be overruled.
    2. There is no presumption that a cause of action is barred by the statute of limitations, but the petition being silent as to time, the presumption is, as against a demurrer, that the cause of action is net barred.
    (Decided January 9. 1900.)
    Error to the Circuit Court of Scioto County.
    The amended petition of the plaintiff in error in court of common pleas, omitting the caption, is as follows:
    “The plaintiff, George M. Osborn, says that he is the administrator de bonis non, with will annexed, of the estate of William Salter, deceased, duly appointed by and qualified in the probate court of Scioto county, Ohio, and that he has been acting as such since May 21, 1888.
    That the defendant, the Portsmouth National Bank, of Portsmouth, Ohio, is and at all times hereinafter mentioned, was a corporation duly organized under the national banking laws of the United States of America, and its principal office located in the city of Portsmouth, in the said county and state.
    That William Salter died testate on the-day of October, 1876, haying at that time a cash balance, subject to check, with the defendant of at least $64,-000.00. That said balance with said bank was so large that it could not have paid the same out at one time, but it did in fact delay paying over the same, except in small sums, and continuing through many years.
    That prior to and at the date of his decease the said William Salter had a valid and subsisting contract with defendant, by which the said defendant was to pay the decedent for the use of his said deposit in said bank six per centum interest per annum on the daily balance in said bank, as shown by the books of the bank, to be credited to his account semiannually on May 20 and October 20, of each and every year.
    That said contract with said defendant has never been annulled, changed or abrogated; nor have the conditions thereof been kept by the defendant.
    That said Samuel Reed and one Anna Beyers were, by the last will and testament of said Salter, appointed as executor and executrix thereof respectively, but that Samuel Reed assumed the actual management and control of said estate as though sole executor, and assumed the responsibility of said trust, and so continued to act until the plaintiff herein was appointed and qualified as his successor in said trust; that during the time that said Reed acted as executor he was also a stockholder and director in the defendant, and was in fact the actual manager of its business and affairs. That said Reed, as said manager, by direction of the bank, kept and retained the money of said Salter, and used the same in its regular business, and said account remained unchanged except as it was increased by deposits therein, or decreased by checks given thereon.
    That said Reed, as manager and stockholder in said bank, was interested in retaining said money in said bank, and in refusing to collect or account for interest thereon; that said defendant, in collusion with said Reed, sought to deprive the said estate of the benefit of the contract for interest above mentioned.
    That the said Salter estate held and kept accounts with said bank for many years, and the said accounts are mutual, numerous and complicated, and the same are in dispute; the said defendant holds back its books and papers relating to said matters, and refuses to come to an accounting or settlement of said matters and refuses to strike a difference in the accounts.
    That if proper credits were made by the said defendant to the said account there would be a large balance in said bank due said estate and unpaid, the exact amount of which plaintiff is unable to state, but avers that same can be ascertained by an examination of the books of defendant.
    That the said defendant fails and refuses, and has refused, though often requested to do so, to account to and with plaintiff for any balance in the said bank, and on deposit with defendant, due the said estate, and has refused and failed to state an account with defendant.
    The said plaintiff therefore prays that the defendant may be ordered to come to an account touching the said matters, and that the court order a reference of said accounts to a master for the purpose of settling the same and ascertaining the exact condition of the said account between the said parties, that a judgment may be had against the defendant for the amount so ascertained, and that the said plaintiff may have all other and proper relief in the premises.”
    To this petition the defendant demurred, claiming that the action was barred by lapse of time. The court sustained the demurrer, and the plaintiff not desiring to amend further, judgment was rendered in favor of the defendant bank. The plaintiff filed a petition in error and the circuit court affirmed the judgment of the court of common pleas. Thereupon plaintiff filed his petition in error in this court, seeking to reverse the judgment of the circuit court.
    
      Duncan Livingstone and J. S. Dodge, for plaintiff in error.
    
      Oscar W. Newman, for defendant in error.
   Burket, J.

Upon the death of William Salter, in the year 1876, a cause of action accrued to his personal representative for the money in bank subject to check, and if the plaintiff was seeking in this action to recover that money only, it would be clearly barred by the statute of limitation, unless prevented by some saving clause of the statute. But the petition avers that by virtue of a valid and subsisting contract, the bank was to pay interest at six per cent, on the daily balances of the deposit, to be credited on the 20th day of May and October in each and every year, and that said contract has never been annulled, changed or abrogated; that said account remained unchanged except as it was increased by deposits therein, or decreased by checks given thereon; that said estate held and kept accounts with said bank for many years, and the said accounts were mutual, numerous and complicated, and that if proper credits were made by the bank to said account, there would be a large balance in said bank due to said estate, and unpaid.

Aside from the deposit of $64,000, subject to check at the death of Mr. Salter, no date is given as to when deposits were made, or when they became payable; but it clearly appears from the petition that there were thereafter credits for interest under said contract, which contract remained unchanged to the date of the filing of the petition; that other deposits were made from time to time, and that the estate held and kept accounts with the bank for many years, but how many does not appear; neither does it appear when the credits for interest ceased, or when the other deposits were made. The demurrer cannot be aided by a presumption that the credits for interest and deposits were made at so early a date as to be barred by the statute of limitations. No presumption arises in favor of the statute of limitations. On the contrary, when the petition is silent as to time, the presumption is in favor of maintaining the action. In such cases the statute of limitations must be invoked by answer. For some years after the adoption of the code of civil procedure, the lower courts held that the statute of limitations could be invoked only by answer, and that it was not available on demurrer; but later it was held by this court that a petition was demur-able Avhich shoAved on its face that the cause of action was barred by the statute of limitations. For aught that appears in this petition there may be a balance due on this account not barred by the statute of limitations, and therefore the demurrer should have been overruled.

The court of common pleas erred in sustaining the demurrer and rendering judgment in favor of the defendant in error, and the circuit court erred in affirming the judgment of the common pleas. The judgments of both courts will be reversed, the demurrer to the petition overruled and the cause remanded to the court of common pleas for further proceedings according to law.

Judgments reversed.  