
    James H. Marr, Administrator, vs. Edward Kübel.
    Law. No. 24,680.
    Decided April 12, 1886.
    The Chief Justice and Justices James and Mebbick sitting.
    1. In an action of detinue no proof of a previous demand is necessary, the serving of the summons being a sufficient demand.
    2. The Statute of Limitations does not begin to run in favor of a bailee until he- sots up an adverse claim in respect or the bailment.
    STATEMENT OF THE CASE.
    This was an action of detinue brought to recover certain bonds claimed to have been deposited with the defendant in August, 1879. The bill of exceptions sets out the material facts as follows:
    “ At the trial of this cause the plaintiff, to maintain the issues on his part joined, proved the grant to him of letters of administration on the estate of Erhardt Mack, deceased, by the Supreme Court of the District of Columbia, on the 24th day of April, A. D. 1883, and that he thereupon entered upon his duties as such administrator; and the death of said Mack, in the city and State of New York, on March 4, A. D. 1881; and that among the assets of said Mack, which came into the possession of plaintiff as administrator, was a paper writing executed by the defendant, and which was offered and read in evidence in the words and terms following, to wit:
    “Received of Erhardt Mack six IT. S. coupon bonds of the denomination of one thousand dollars each, Nos. 238,821 to 238,826, 4 per ct., for safe keeping, and to be returned to him on call.
    “Washin&tc t,j D. C., August 2, 1879.
    “ Edward Kubel,
    “326 First street, Washington, D. C.”
    “And the plaintiff further proved that the public administrator in said city of New York, appointed under the laws, of said State of New York, administered in said city of New York upon the personal estate of said Mack; and that Richard M. Bremo, an attorney-at-law and counsellor, of said city of New York, representing said public administrator, together with William Pierce Bell, attorney for the plaintiff in this cause, called upon Martin F. Morris, the attorney for the defendant in this cause, at the city of Washington, in the District of Columbia, on the 26th day of December, A. D. 1882, and made demand upon him for the surrender of the bonds mentioned in the foregoing receipt; and that said Morris then and there offered that if said public administrator would file a bill in equity in said District to litigate the controversy, and not a suit at law, he would waive on behalf of the defendant the defence of the Statute of Limitations and all objection'to the right of said public administrator to sue in the District of Columbia, said Morris at the time admitting that he was attorney for the defendant, and that demand on him was demand on Kubel; that the said public administrator did not file any bill in equity in said District, but that subsequently, after the appointment of the plaintiff in this cause as administrator of said Erhardt Mack in the District of Columbia, said plaintiff, on June 3, A. D. 1883, caused a bill in equity to be filed in said District in his own name as • administrator, and a writ of subpoena in pursuance thereof was served upon the defendant in said equity cause No. 8,600, and introduced the record in evidence; but that subsequently, before issue joined thereon, the plaintiff caused the same to be discontinued.
    The plaintiff then caused the present suit to be instituted, and the writ was duly served upon the defendant. And the plaintiff then further offered testimony to prove that the defendant had not redelivered or surrendered the bonds or paid anything on this account. And thereupon, this being all the testimony in the case on tne part of the plaintiff, he rested.
    The defendant offered, through his attorney, to be sworn as a witness on his own behalf, and to testify as to the circumstances under which the paper writing herein-before mentioned was executed; but he was refused and not permitted to testify.
    Thereupon the defendant requested the court to instruct the jury as follows:
    “ The defendant prays the court to instruct the jury, that if they find from the evidence that the bonds, for which this suit was brought, were delivered by the plaintiff’s intestate to the defendant as a bailee without hire to be redelivered upon demand, they were presently and immediately demandable, and the Statute of Limitations Ibegan to run from the time of the delivery of the bonds to the defendant.”
    [There were a number of other prayers, but as they were substantially the same in effect, it is not deemed necessary to insert them here.]
    But the court severally refused to give each of said instructions, or any one of them, but said :
    “ I adhere to the impressions that I first took that the Statute of Limitations did not ruD in this case until a sufficient demand was made ; and, therefore, under the evidence the plea of the Statute of Limitations does not prevent recovery in this case. With regard to the demand itself, I think a foreign administrator has a right to make the demand, and the defendant would have a right to be discharged upon paying the foreign administrator. That is a sufficient demand, and suit might afterwards he brought either by a foreign administrator or a local administrator. In this case it does not appear that demand was made by the foreign administrator upon the defendant. Mr. Morris does not admit that he was the representative of the party for such a demand, and what he said at that time would not be evidence in the case. It seems to me that the subsequent demand by the institution of the suit, taken with the interview with Mr. Morris contemplating such a suit was a good demand by the present administrator. Perhaps the suit alone would not be sufficient; but that suit, taken in connection with the interviews with Mr. Morris which terminated with their making a demand by legal proceedings, does amount to a demand sufficient to entitle the plaintiff to have the bonds before the suit was brought. In other words, that legal demand was made before this suit was brought, and consequently a cause of action arose on the refusal to deliver.
    “All the special prayers of defendant are refused, although they may be sound propositions of law. Most of them are mere variations of others; that the cause of action arose on the deposit of the bonds.
    “With my view of the matter, I therefore instruct you that I think demand was sufficiently made in this case.”
    And thereupon the court further instructed the jury to render their verdict for the plaintiff. To all of which rulings of the court the defendant excepted.
    Wm. Pierce Bell and Wm. TI. Larner for plaintiff.
    M. F. Morris for defendant.
   By the Court:

The court below properly held that the filing of the bill in equity, taken with the interviews previously had between tbe parties and their attorneys, was a sufficient demand. But even if that were doubtful, we are of opinion that no proof of a demand was necessary. The original practice in detinue was to issue a proecipe commanding the delivery of the property to the plaintiff, after which the summons was issued, hence, as the serving of the proecipe was of itself a demand, no proof of a demand in pais was required on the trial. But, now in many jurisdictions, including this, the issuing of the proecipe has been dispensed with, and the suit is commenced by summons, although the rule of evidence as to proof of a demand in pais remains the same. So that practically the serving of the summons, has with us come to be regarded as a sufficient demand.

It is contended; however, that if this action may be brought without a previous demand, then, as it might have been brought the very next day after the bailment, the Statute of Limitations must begin to run from that day, and, inasmuch, as more than three years had elapsed before the instution of suit, the action is barred. But a well-settled rule governing the application of the Statute- of Limitations is that it does not begin to'run until there is an adverse claim on the part of the defendant. Applying that rule to the case of one who receives a deposit as bailee, it is plain that his original possession is not adverse, and, of course, so long as it remains so the statute will not run in his favor. It is only from the time he sets up an adverse claim to the property that the statute is put .in operation and begins to run. As the plea of limitations was really the only question in the -case, we affirm the judgment.  