
    Greer vs. Perkins.
    1. Iuan action against a partner of an unincorporated banking association, or against a bank, where such bank or partner relies on the statute of limitations, defendant must show that the note was last issued by the bank or association more than six years before suit brought.
    2. The date of a bank note furnishes no presumption that it was put into circulation ' at that lime.
    There was an unincorporated association in the town of Holly Springs, Mississippi, organized in 1837, for the purpose of carrying on the business of banking. The company issued notes to be used as currency and which were used as such, received deposits, &c. &c. On the 16th day of October, 1837, a note was executed which was of the following tenor:
    “150. On demand, one day after date, the Real Estate Banking Company of Holly Springs promises to pay to A. R. Govan, or bearer, fifty dollars. Holly Springs, Miss. October 16th, 1837. Jam. McCorckle, Pres. Wm. Harley, Cashier.”
    On these notes was endorsed, “Real estate mortgaged and individual property for amount subscribed by each stockholder.”
    This note came to the hands of Nicholas T. Perkins by delivery and was by him presented for payment at the office of this banking company in Holly Springs, on 20th October, 1838, and payment refused.
    On the 26th day of March, 1844, Perkins brought suit by warrant against Greer, one of the partners in said concern, before a Justice of the Peace in the county of Shelby. A judgment was rendered in favor of the defendant, and Perkins appealed from the judgment to the Circuit Court.
    The case came on for trial at the February term, 1845, J. C. Humphreys, Special Judge, presiding. The defendant relied on the statute of limitations, upon which subject the Judge charged the jury, that if they should believe, from the testimony, “that such alledged unincorporated company were associated for the purposes of banking, and in the ordinary business of banking issued their notes in the usual form of bank notes, with a view to their circulation as currency and that they did circulate as currency, and that they were in the habit of receiving such notes on deposit and in payment of debts, or .otherwise, and reissuing the same, and that the note sued on was of the kind and character above mentioned, the statute of limitations would not operate as a bar to a recovery, unless it should be shown that within six years before the commencement of suit, payment of the note had been demanded of and refused by said company, or that said note had not been reissued within that time.”
    The jury rendered a verdict for the plaintiff, from which the defendant appealed.
    
      E. M. Yerger, for the plaintiff in error.
    The charge of the court below amounts in substance to this: that the statute of limitations did not commence to run until demand was made and payment refused. This is erroneous.
    1. Upon a note payable on demand no actual demand is necessary, and a cause of action immediately accrues and the statute commences running immediately from the date. An-gelí & Ames on Lim. 182; 13 Wendell’s Rep.
    The charge of the court below went upon the ground that the statute of limitations was not applicable to bank notes; and not ■ being applicable to them, did not apply to the note upon which this action is brought.
    This reasoning will not do. ' Admitting that the statute does not apply to bank notes, yet this is the note of a private partnership and the members of the company are responsible in the same manner and are subject to all the liabilities, and enjoy the same rights and privileges as partners in private partnerships, and no more nor less. This was so determined in the state of “Mississippi, in the case of Brisgenard et ais. vs. Wall, 1 Smede & Marshall’s Chan. Rep.
    But we do not admit that the statute of limitations does not apply to bank notes. It says, all actions of debt not upon specialty shall be barred unless sued upon in six years, &c.
    This is a bar to every cause of action for which debt may be brought. 3 Peters’ Rep. 277.
    
      The statute makes no exceptions in favor of bank notes-, and when that does not, the court cannot.
    A court should not feel at liberty to break in upon its construction by allowing an exception which has not acquired the complete sanction of authority. 8 Cranch, 98.
    The only case which at all favors the notion we are combat-ting is a case in 16 Mass. Rep. 65. That case does not decide the point, for it was not raised in it; and as a mere dictum it is entitled to no weight. The court seemed to think the statute of limitations went merely upon the presumption of the payment of the debt, when in fact the statute is intended as a statute of repose, and the very passage of it does away with all presumption, and makes the bar positive.
    The charge of the court below should have been, that if the jury believed the note to have been reissued within six years before the commencement of the action, that such reissuance amounted to a new promise, sufficient to take the case out of the statute. This charge would have left the onus of showing the new promise upon the plaintiff, who replies and who is bound to show it, and that clearly and conclusively. See Bell vs. Morrison, 1 Peters’ Rep. 360. If the law is as charged, it would devolve upon .the defendant to show that he had made no new promise or incurred no new liability, sufficient to take the case out of the statute, which proposition is too unreasonable to need argument to disprove.
    
      H. 6r. Smith, for defendant in error.
    Upon bank notes payable on demand, does the statute of limitations of six years run in favor of the banking company, beginning with the date of the bill in absence of proof of the actual day of issuance — is the question here.
    . Upon the promissory notes of private persons payable generally on demand, an action accrues immediately to the holder, and consequently the bar begins with the date.
    But bank notes seem to stand on different footing. They are not as private notes mere evidénces of debt, made to be presented and paid at or shortly after the execution. They are issued for currency — to be used as money — put in circulation to remain out, not expected or desired to be held or returned as evidences of debt, for payment.
    Further: private notes are presumed to be executed at their date. Being the evidence and security for a debt, it would be against common usage and probability to suppose them executed before the debt existed. Not so with bank notes. They are made before the debt to be evinced by them accrues. They are prepared to be ready for issuance as cash, when any borrower applies for them. They are in the ordinary course of banking business issued and reissued from time to time as they may be paid in and out. Hence the date of a bank note ought not to be presumed its day of issuance, norfhat action accrued at the date, nor that the statute runs from that day. 15 Mass. 65.
    Whether an action accrues upon a bank note payable generally on demand, without a previous demand being made, seems to be an open question. The weight of authority rather inclines in'favor of the action without previous demand. In New York, in 18 J. R. 493, and in 3 Wend. 13, Woodworth in the former and Savage in the latter case, state such to be their opinion. And in Baily on Bills, 197, n. a casé is cited from 1 Southard’s Rep. 382, in which the doctrine is so held.
    There seems much reason for holding that bank notes ought not to sustain an action without demand. And hence in New York the question has been repeatedly-avoided and left open.
    The consequences would be alarming to presume the date of a bank note to be the day of its execution or last issuance, and to hold that the statute of limitations begins to run from the date in the absence of express proof of the day of last issuance. It would enable banks to practice great frauds, and would discredit all notes more than six years old.
    It is not perceived that any difference subsists in respect of the question involved here, between the bank notes of corporate and unincorporate banking companies.
    The case in 16th Mass, is the only one bearing on the question, I have been able to find upon very diligent search.
   Green, J.

delivered the opinion of the court.

This action is brought by Perkins on a fifty dollar note of the Holly Springs Banking Company, against Greer, the defendant below, as one of the partners in that company. The defendant relied on the statute of limitations. The court charged the jury in substance, that the statute of limitations would not operate, unless the defendant had shown by proof that payment of said note had been demanded and refused, more than six years before the suit was brought, or that the said note had not been reissued within that time.

It is insisted that there is error- in both propositions of this charge. It is supposed that the Judge intended to instruct the jury, that before a suit could be maintained upon a note payable on demand, an actual demand must be made. This is an erroneous interpretation of the language of the court. The principle asserted in the charge is, that it must be shown by the defendant who relies on the statute of limitations, that the cause of action accrued more than six years, before the suit was brought. And in this case that fact may be shown by proving" a demand more than six years before suit brought, as it will be presumed it was not reissued subsequently to such demand; or if the fact be not shown by some other proof that the note had not been reissued within six years, no cause of action would have existed for the time to form the bar.

We are all of opinion that the court did not err against the plaintiff in error in this charge. The date of a bank note furnishes no presumption that it was put into circulation at that time. They are, as we know, prepared and kept ready for circulation previously- to the time of their actual issuance; and until they are actually issued, no liability is incurred, and no cause of action can exist. And as the banks are constantly receiving their own notes from their debtors, each note so received is thereby paid up and discharged, and no cause of action can exist until it is reissued. Then a new liability is incurred, commencing not from the date of the note, but from the time of such reissuance. Thereforé such a bank, or (if it be unincorporated) such partners of a banking company, who may be sued on their note, to avail themselves of the statute of limitations must show that the cause of action accrued more than six years, that is, it must appear that the note was last issued by the bank more than six years before the suit was brought.

Affirm the judgment.  