A note, in order to amount to a witnessed note within the meaning of the statute, must be attested by a person who at that time was legally competent to testify to the fact in court;1 and under this rule, where a note was attested by the wife of the payee, who at that time was not a competent witness for or against her husband, but who by statute was made competent before the action was tried, it was held that the note was not a witnessed note within the meaning of the stat ute. So, too, the witness must have signed it as such with the maker's assent, and as a part of the same transaction, and must either have seen it signed by him, or subsequently have signed it as witness at the maker's request. The fact that a person saw the maker sign a note does not warrant him in signing the note as witness at another time when the maker is not present, and without his knowledge or assent, and a note so attested is not a witnessed note within the meaning of the statute."

6

The attestation of the signature of one maker of a note, which is subsequently signed by another person as maker, whose signature is not attested, does not make the note a witnessed note as to the last maker, but only as to the first. In order to bring the note within this statute as to all the makers, it must have been signed by him as witness in presence of all the makers. A payment upon a witnessed note within twenty years from its date, renews it for twenty years from the date of the payment; except in Vermont, where the statute runs in fourteen years.

No particular form is requisite to make a witnessed note, nor is it necessary that any words indicating the capacity in which the witness. signs the note should be written there. But the fact that his name was placed there as witness may be shown by proof aliunde. Thus, where a person put his name upon a note as witness just below the body of the note, and directly above the date, it was held to apply to

442; Pitt v. Holmes, 10 Cush. (Mass.) 92; Pritchard v. Chandler, 1 Curtis (U.S.C.C.), 448; and the same rule seems to apply to any bona fide purchaser. Rockwood v. Brown, ante. The holder of a note pay. able to a certain person or bearer may bring an action thereon in the name of the executor, &c., of the payee, with the consent of such executor, &c. Sigourney v. Severy, 4 Cush. (Mass.) 176.

1 Jenkins v. Dawes, 115 Mass. 599. 2 Jenkins v. Dawes, ante.

8 Smith v. Dunham, 8 Pick. (Mass.) 249; Lampson v. Fisher, 123 Mass. 559. The question as to whether a note was signed at the maker's request and is a part of the same transaction is for the jury. Id.; Lapham v. Briggs, 25 Vt. 26.

4 Swazey v. Allen, 115 Mass. 594; Boody v. Lunt, 19 Me.

5 Smith v. Dunham, ante; Trustees, &c. v. Rowell, 49 Me. 330.

6 Walker v. Warfield, 6 Met. (Mass.) 466. In Stone v. Nichols, 20 Me. 49, a note was signed by the maker in the presence of a witness, and duly attested, and subsequently it was signed on the back by another person, but not in the presence of the witness, but in pursuance of an original agreement to that effect, and it was held not a witnessed note as to the latter. 7 Lapham v. Briggs, 27 Vt. 26.

8 Estes v. Blake, 30 Me. 164; Howe v. Saunders, 38 id. 350; Lincoln v. Newhall, 38 id. 179.

9 Faulkner v. Jones, 16 Mass. 269.

the whole note if shown to have been placed there for that purpose after the note was completed.1 An indorsement written upon a note acknowledging it to be due, signed by the maker, and witnessed, does not amount to a witnessed note; 2 but a memorandum thereon as follows: "For value received I hereby acknowledge this note to be due, and promise to pay the same on demand; or, " "I hereby renew the within note," witnessed, have been held to amount to witnessed notes.* An instrument as follows: "On demand with interest please pay J. S. or order fifty-five dollars," witnessed, has been held to come within the statute as a witnessed note.5

SEC. 140. Checks. When a check is given upon a bank in which the drawer has no funds, and in which he had none during the ensuing six years, the statute of limitations begins to run from the time when the check was given; and in such cases no demand or presentment need be shown, and even though the want of funds is shown to have resulted from the fraudulent act of the maker, he is not thereby estopped from setting up the statute. The breach of contract is the cause of the action, even though there is fraud on the maker's part, and the contract is broken instanter, as in all cases where a check is drawn upon a bank where the maker has no funds it is due without presentment and demand. But where the drawer of the check has funds in the bank upon which it is drawn, the statute does not begin to run until it has been presented for payment and payment has been refused. Indeed, at law a check is treated as an inland bill of exchange; and, if

1 Warren v. Chapman, 115 Mass. 584. 2 Gray v. Bowden, 23 Pick. (Mass.) 282. 8 Commonwealth v. Whitney, 1 Met. (Mass.) 21.

Daggett v. Daggett, 124 Mass. 14. 5 Almy v. Winslow, 126 Mass. 342. 6 In Brush v. Barrett, 16 Hun (N. Y.), 409, the defendant gave a check upon a bank where he had no funds at the time or for more than six years thereafter. The check was not presented for payment until ten years after it was made. Held, that the statute of limitations began to run at the time the check was made, and an action thereon against the maker was barred after six years. The rule is well established that if the drawer has no funds in the hands of the drawee an action can be maintained against the former without presentment or notice of non-payment. Mohawk Bank v. Broderick, 10 Wend. (N.Y.) 304; Fitch v. Redding, 4 Sandf. (N. Y.) 130; Healy v. Gilman, 1 Bosw. (N. Y.) 235; Johnson v. Bank of North America, 5 Robt. (N. Y.) 554. The circumstance

that the want of funds was the result of the fraudulent act of the drawer would not estop him from setting up the defence of the statute. In such a case the check is due without presentment and demand. The breach of the contract is the cause of the action, and the statute begins to run from the time of such breach, even if there is fraud on the part of the defendant. East India Co. v. Paul, 7 Moo. P. C. C. 89; Battley v. Faulkner, 3 B. & Ald. 288; Whitehouse v. Fellows, 10 C. B. N. s. 765; Wilkinson v. Verity, L. R. 6 C. P. 206. Affidavit by Court of Appeals, Nov. 9, 1880.

7 Johnson v. Bank of North America, 5 Robt. (N. Y.) 554; Mohawk Bank v. Broderick, 10 Wend. (N. Y.) 304; Healy v. Gilman, 1 Bos. (N. Y.) 235; Fitch v. Redding, 4 Sandf. (N. Y.) 130.

8 Wilkinson v. Verity, L. R. 6 C. P. 206; East India Co. v. Paul, 7 Moo. P. C. C. 85; Whitehouse v. Fellowes, 10 C. B. N. s. 765; Battley v. Faulkner, 3 B. & Ald. 288.

a loan is made by means of a check, a cause of action does not arise against the debtor until the check is cashed. This rule was illustrated in an English case,1 where, in an action for a loan made by a check for £45, June 14, 1861, the writ was not issued until June 21, 1867, and the defendant set up the statute of limitations. It appeared that the defendant paid the check into his bank on the day following June 15, and received credit for it. The defendant having omitted to indorse the check, though payable to order, it was returned to him for signature, and was not presented to the plaintiffs and paid by them till the 21st June, 1861. It was held by the Court of Common Pleas, as being too clear for argument, that the statute was not a bar. The question, according to KEATING, J., was, When could the plaintiff have first sued the defendant for money lent? And he was of the opinion that the plaintiff could not have done so till he had lent the money, which was when the check was cashed, on the 21st June.

8

Where a check is certified, or marked "good" by the bank on which it is drawn, the holder stands in the place of the original depositor as to the amount covered by it, and the statute does not begin to run against him until an actual demand has been made by him upon the bank for payment.2 As stated in a New York case, a bank by certifying a check to be good creates a simple and unconditional obligation on its part to pay the same on demand, and demand may be made at any time suiting the convenience of the party entitled to payment, and no laches can be imputed to him because of delay.

1 Carden v. Bruce, L. R. 3 C. P. 300.

2 Girard Bank v. Bank of Penn. Township, 39 Penn. St. 92; Meads v. Merchants' Bank, 25 N. Y. 143; Atlantic

Bank v. Merchants' Bank, 10 Gray (Mass.) 532; Bank of the Republic v. Baxter, 31 Vt. 104.

8 Willets v. Phenix Bank, 2 Duer (N. Y. Superior Ct.), 121.

CHAPTER XIII.

MISCELLANEOUS CAUSES OF ACTION.

SEC. 141. Contracts, Express and Implied. Upon contracts of all classes, whether written or verbal, the statute begins to run from the time when a right of action accrues.1 Thus, where goods or property

of any description are sold, and no time is fixed for payment, the law implies a promise to pay when the purchase is made; and the plaintiff cannot, by showing a custom on his part to give one year's credit, prevent the running of the statute from the day of sale.1 Where the terms of a contract are express, and the time of payment is agreed upon, of course the statute begins to run from that time, unless the time has been extended by the agreement of the parties; and when a contract has been made, and the time of payment has been fixed, and more property is delivered than was to be delivered under the contract, or more or extra work is done, and no contract is made as to the time of payment for the extra goods or extra work, the statute begins to run as soon as the goods are delivered or the extra work is completed. Thus, when a contract was entered into to build a ship at an agreed price, and afterwards the ship was built larger, but without any further agreement as to the time of payment for the extra labor, it was held that the statute began to run as soon as the work was completed. Where a term of credit is agreed upon, of course the statute does not begin to run until the time of credit has expired, and in this class of contracts little or no difficulty in determining the time when the statute begins to run exists. The only difficulty arises with that class of contracts where the time for payment is not fixed, but is left to legal inference. In a contract for services, if the work is done under a continuous contract, and no time for payment is fixed, a right of action does not accrue until the work is completed; but although the work is continuous, yet if it is done under distinct contracts, a right of action accrues under each contract, and the statute begins to run from the time when it is completed.5

SEC. 142. Deposits, Certificates of Deposits, &c. -In England a general deposit in a bank is treated as a loan, and the statute begins to run instanter; but in this country it has been held that an action cannot be

1 Brent v. Cook, 12 B. Mon (Ky.) 267. In Hursh v. North, 40 Penn. St. 241, evidence of a custom of the plaintiff to give a credit of six months was held not admissible for the purpose of proving that the price was not to be paid when the goods were sold, but on a certain date thereafter, so as to avoid the statute by showing that the bill was not due until within the statutory period.

2 Peck v.
New York & Liverpool
Steamship Co., 5 Bosw. (N. Y.) 226.
Tisdale v. Mitchell, 12 Tex. 68;
Bush v. Bush, 9 Penn. St. 260.

Eliot v. Lawton, 7 Allen (Mass.), 274. In Litter v. Smiley, 9 Ind. 116, where in an action for work done for the plaintiff's intestate no time for payment was specified, and no time of service was

agreed on, it was held that the statute did not begin to run as to any of the work until the work was fully completed, although it extended through a series of years. But in Davis v. Gorton, 16 N. Y. 255, where a person entered into the defendant's employment at a fixed salary, but for no definite time, and no time for payment was agreed on, it was held to be a general hiring from year to year, the pay for each year's service becoming due at the end thereof, so that the statute begun to run on each year's wages from the end of each year. McLaughlin Maund, 55 Ga. 689; Pursell v. Fry, 19 Hun (N. Y.), 595.

Davis v. Gorton, ante.

• Pott v. Clegg, 16 M. & W. 321. In Wright v. Paine, 62 Ala. 340, where money