brought upon a bond given by a commissioner to sell real estate, an action accrues against the surety after the lapse of a reasonable time within which the commissioner neglects to pay over the money, and from that time the statute begins to run in the surety's favor.1 If no time is fixed within which the condition of a bond is to be performed, but it is left contingent upon the happening of a certain event, the statute does not attach thereto until such event transpires. Thus, in a New York case, the defendant gave the plaintiff's testator a bond for fifteen hundred dollars, which sum was to remain with the defendant until demanded by the plaintiff's testator, and if not then paid the obligation of the bond to be in full force. The plaintiff's testator died without ever having made demand for the money, and bequeathed the bond to his daughter, the defendant's wife, with directions that on the death of either herself or husband his executors should collect it. The wife died first, and in an action upon the bond by the testator's executors it was held that the defendant by accepting the money upon a contract where no interest was payable, and the principal only at the will of the obligee, had put it in the power of the obligee to postpone the day of payment at his pleasure, and that the bequest to the wife of the obligor had the effect to postpone the possibility of demand until the death of either herself or the obligor. 8 Where, however, no time for performance is specified, and performance is not dependent upon any contingency, a right of action begins to run within a reasonable time. Thus, where a bond was conditioned to pay an outstanding mortgage on land bought by the mortgagee, and no time within which payment should be made was fixed in the bond, it was held that a right of action accrued and the statute began to run at the end of a reasonable time after the mortgagee would be obliged to receive the money. But in such a case it would seem that the right of the mortgagor to pay and the right of the mortgagee to sue for the money arose at once, and there would seem to be no reason why the rights of either party should be subjected to any such uncertainty as the rule last stated entails upon them; and in a case where a mortgage was executed, and fixed no time for redemption, it was held that the right to redeem attached at once, and the statute began to run from the execution of the mortgage. In a South Carolina case, where a covenant fixed no time for payment but provided for a reference to arbitration in case of any disagreement as to the amount to be paid, it was held that the statute attached to the demand from the date of the covenant, and that the statute of limitations did not begin to run until after the demand made by the obligee's executors, after the devisee's death. But if a specific time for performance is named, then the statute attaches at that time. Thus where A. conveyed land to B., and at the 4 Tucker v. White, 2 D. & B. (N. C.) Eq. 289. 1 Owen v. State, 25 Ind. 107. 2 Sweet v. Irish, 36 Barb. (N. Y.) 467. 8 Jennings v. Norton, 31 Me. 512. 5 Wilson v. Wilson, 1 McMull. (S. C.) Eq. 320. same time gave him an obligation that if at the end of a year the land should not be worth the money received therefor with the interest, he would make up the deficiency, "or otherwise pay that amount on receiving a reconveyance," and B. at the same time gave to A. a bond stipulating that he would, on repayment of such money at any time within the year, reconvey the premises to A. It was held that B.'s right of action against A. did not accrue nor the statute of limitations begin to run until the expiration of the year, but that from that time the statute began to run upon the obligation.1 In a case in Maine,2 a question arose in an action upon a jail-bond, whether, where there were two distinct breaches of the bond, the statute began to run upon the first breach, so as to bar an action upon the second; and the court held⚫ that it did, because the amount recoverable upon the first breach would have been the same as for both. But in an action upon a bond where the liability is continuous, and arises for each breach, as upon a bond given to a sheriff by his deputy, conditioned for the faithful performance of his duties as such, the statute only runs from the date of each breach, and a recovery may be had as to breaches not barred, although the statute has run as to others. In the case of bonds conditioned for the conveyance of real estate, or title bonds as they are called, the statute does not begin to run against a suit by the obligee for a specific performance until a demand for a deed and a refusal by the obligor, or some other decisive act of the obligor indicating an intention to claim the land or repudiate the sale; but the statute attaches from the date of the first demand, and a new right cannot be acquired by a new demand. SEC. 176. Effect of Acknowledgment of Payment on Specialties. -In those States where no provision is made by statute relative to specialties, the effect of acknowledgment is well expressed by Mr. BANNING in his work on Limitations.5 He says: 66 According to the Vice-Chan 116. 1 Smith v. Fiske, 31 Me. 512. 2 Brown v. Houdlette, 11 Me. 399. 4 Yeary v. Cummins, 28 Tex. 91. 5 Page 185. In Blair v. Ormond, 17 Q. B. 423, which was an action of debt by the administrator of B. on a bond made by W. to B., dated 5th December, 1812. The condition recited that B. had agreed to advance to W. the produce of the sale of certain stock in the funds, without any other advantage than B. would have been entitled to if the stock had remained in his name in the bank; that B. had sold the stock and paid the produce to W.; and that it had been agreed between them that the same or a like sum of the same stock should be replaced and transferred to B.; and the condition was that, if W., before 5th June, then next, purchased the said amount of stock and transferred the same to B., and paid to B., in lieu of the dividends thereof, such sums as B. would have been entitled to receive for the dividends if the stock had continued in his name, at such times, and in such proportions, and in such manner, as the dividends would have been payable to B. if the stock had not been sold, then the bond to be void. Breach: (1) that W. did not, before the 5th June, or since, purchase the said amount of stock and transfer to B., or to plaintiff as administrator; (2) that the dividends of the stock, if it had remained standing in the name of B., would have cellor,' the principle on which the courts acted previously to the statute we are now considering was this. been payable half-yearly after the date of the bond, and that the first and only one of such dividends before the said 5th June would have been payable on 5th January, 1813; that on 11th September, 1824, B. died; that, if the stock had continued standing in B.'s name, or plaintiff's as administrator, a large sum, to wit, &c., would have been payable half-yearly as dividends, and that the money payable in lieu of such dividends, and becoming due after B.'s death (during a period which was specified), amounted to a large sum, to wit, &c.; and that, although the stock had not been transferred into the name of B. or of his administrator, yet W. had failed to pay the sums so due in lieu of dividends. The defendant pleaded that the causes of action did not accrue within twenty years next before the commencement of the suit. To this plea the plaintiff replied: as to the first breach, that, while the stock remained untransferred, and a certain sum, to wit, &c., was due in lieu of the dividends, to wit, on 10th September, 1824, W. made an acknowledgment to J. B. that the stock remained untransferred contrary to the condition, and was due thereon, by W. making to B. satisfaction on account of part of the said sum, to wit, £10; and that the action was brought within twenty years next after such acknowledgment; and as to the other causes of action, that they did accrue within twenty years, &c. To this replication the defendant rejoined, as to the first part of the replication, a traverse of the bringing of the action within twenty years next after such supposed acknowledgment. Issue thereon. As to the second part of the replication, issue was joined. It was proved that B. had, since the advance to W., agreed to board and lodge with W. at 10s. 6d. per week, that amount to be deducted from the interest of the noney which W. had borrowed; and that settlement should be made every six months. B. had boarded and lodged with There was then no statute W. till B.'s death, in September, 1824; but no settlement had ever taken place, though frequently demanded by B. It was held that, supposing issue raised by the rejoinder cast upon plaintiff the burden of proving that such an acknowledgment as that mentioned in the replication was made within twenty years next before, &c., there was sufficient evidence to entitle plaintiff to a verdict upon both the first and the second issues. Also, that the bond was not within Stat. 3 & 4 Wm. IV. c. 42, § 5; that the replication, therefore, was no answer in law to that part of the plea which related to the first breach; and that plaintiff was therefore not entitled to any damages on that breach. But that that part of the condition which stipulated for the payment from time to time, of the sums payable in lieu of the dividends still remained in force as to so much of the sums as had accrued due, from time to time, within twenty years before action brought, the penalty of the bond not having been insisted upon in respect of sums accruing due earlier; and that plaintiff, therefore, was entitled to damages in respect of so much of the second breach. LORD CAMPBELL, C. J., in giving the opinion of the court, said: "The first question to be considered in this case is, whether there was evidence to go to the jury to entitle the plaintiff to a verdict on the first issue on the second plea. We think that there was. The defendants merely rejoined, as to the part of the plaintiff's replication to the second plea that the said action was not brought within twenty years next after the said supposed acknowledgment of the said Thomas Wood in the said replication alleged to have been made. Supposing that this casts upon the plaintiff the burden of proving that such an acknowledgment as is stated in the replication was made within twenty years next before the commencement of the action on the 4th of September, 1844, we think that the evidence was 1 KINDERSLEY, V. C., in Moodie v. Bannister, 4 Drew, 432. which prevented a bond creditor coming and claiming his debt at any time; but the courts of law, and the courts of equity following them, quite sufficient for that purpose, as it proved an agreement between Wood and Buckley that Buckley should be boarded and lodged by Wood for the weekly sum of half a guinea, and that this weekly sum should go and be accepted in part satisfaction of the sums due from Wood to Buckley in respect of the dividends on the stock, till it should be replaced; and, further, that this agreement was carried into effect and acted upon till the death of Buckley, on the 11th of September, 1824, down to which time he was boarded and lodged by Wood; the weekly payment, by the agreement, going and being received under the agreement in satisfaction of money then due and growing due from Wood to Buckley in respect of the dividends, the stock never having been replaced. Therefore, if this evidence is believed, immediately before the death of Buckley, Wood made acknowledgment to him that the stock remained untransferred, and was then due; and Wood then made to Buckley part satisfaction on account of the bond, by making Buckley satisfaction on account of part of the sum of money then due and payable in lieu of the dividends. There being such evidence, we draw from it the inference which I have stated; and the action having been commenced within twenty years, this issue must be entered for the plaintiff. The cases of Hart v. Nash, 2 C. M. & R. 337, and Hooper v. Stephens, 4 Ad. & El. 71, are in point to show that such a dealing is equivalent to a money payment. Worthington v. Grimsditch, 7 Q. B. 479; Callander v. Howard, 10 Com. B. 290; Bevan v. Gething, 3 Q. B. 740; and the note in 1 Smith's Leading Cases, 321, on Whitcomb v. Whiting, 2 Dougl. 652, were also referred to during the argument on this point. And see Lucas v. Jones, 5 Q. B. 949. "The verdict upon the second issue raised on the second plea must likewise be entered for the plaintiff, as the dividends mentioned in the second breach became due within twenty years next before the commencement of the action. By the agree ment between the plaintiff and the defend ants, stated in the special case, either party is at liberty to raise any objection on the face of the record. And the defendants objected that the first replication to the second plea is bad in point of law, because such an acknowledgment as is there stated would not take the case out of the statutes of limitations. To judge of this objection, we must look to see what the real contract was, as it appears from the bond and condition bearing date 5th December, 1812. The condition contains a recital, that Wood wished to borrow from Buckley, and to take up at interest the sum of £877 48. 1d. five per cent stock, and had applied to Buckley to advance him the same, or the produce by sale thereof; which Buckley had agreed to do, being entitled only to as much as he would have received in case the stock had continued standing in his own name. It then recites that the stock had been sold out, and the produce thereof, amounting to £792 4s. 2d. had been paid to Wood; and that it had been agreed between them that the like sum of £877 4s. 1d. five per cents, should be replaced by Wood in the name of Buckley. The condition is then declared to be, that Wood should replace the stock on or before the fifth day of June, 1813, and pay to Buckley, in lieu of the dividends thereof, such sum or sums of money as Buckley would have been entitled to receive for the dividends of the £877 48. 1d. in case the same had continued standing in his name, at such time and times, in such shares and proportions, and in such manner, as the same dividends would have been payable to him in case the same had not been sold in manner aforesaid. The bond is conditioned for replacing a precise amount of stock on a fixed day, viz. 5th June, 1813, not for the payment of any given sum of money on that day, nor even for the payment of such a sum of money as would purchase the given amount of stock, but for replacing the stock itself. Such being the nature of the instrument on which the action is brought, we are to consider whether it comes within sect. 5 of Stat. 3 & 4 Wm. IV. c. 42, by which it is provided that, if any held the doctrine of presumption, that after a certain lapse of time payment must be presumed, and when an action was brought on a acknowledgment shall have been made, either by writing, or by part payment or part satisfaction on account of any principal or interest being then due on any specialty, it shall be lawful to the persons entitled to the action to bring their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid. The defendants' counsel insisted that this cannot extend to a bond conditioned for the replacing of stock, arguing that this is an act to be done, and that the breach sounds in damages, depending upon the price of the stock when it ought to have been replaced or when the action is brought. "We are of opinion that this view of the 5th section is correct. The payment of sums of money in lieu of dividends which would have been payable if the stock had remained in the name of the obligee is not payment of interest; neither is any sum of money thereby acknowledged to be due. Indeed the replication itself does not so allege; but only that the said Thomas Wood made an acknowledgment that the said amount of stock remained untransferred, by making part satisfaction on account of the money so payable in lieu of dividends. This averment certainly does not bring the case within the words of the 5th section, nor (as we think) within the spirit of it. If any authority was wanting, we have the case of Gillingham v. Waskett, 13 Price, 434, in which it was held that a plea of set-off to such a bond was bad, because it was not a bond for the payment of money. The argument, that, as the bond in question is plainly within the 3d section, it must necessarily be within the 5th, is quite untenable; for it is obvious that a bond conditioned to perform the covenants of a lease in respect of repairs, or any other matter sounding purely in damages, would be within the 3d section; and yet it would be impossible by any ingenuity of construction to bring it within the 5th. As, therefore, the first breach relates to the day of default, viz. 5th June, 1813, which was more than twenty years before the action, and the plea sets up that defence, to which the replication is no answer in law, we are of opinion that, though the verdict on the rejoinder taking issue on that replication must be found for the plaintiff, the plaintiff nevertheless is not entitled to any damages on that breach, on account of the insufficiency of the replication. 66 'The second breach stands on very different grounds. Though the remedy to recover damages for not replacing the stock is taken away by lapse of time, yet the condition so to replace it is not thereby wholly destroyed; and that part of the condition which requires the payment from time to time of such sums of money as would have been payable by way of dividends if the stock had remained in the name of Buckley still continues in force. This last stipulation is distinctly expressed in the words of the condition, that Buckley was to receive such sums of money as he would have been entitled to for dividends at such times and in such manner as the dividends would have been payable to him if the stock had not been sold out. The defendants' counsel contended that this extends only to the payment of the dividends down to the 5th June, 1813, when the stock was to be replaced. But down to that day there could only have been one dividend due; and the language employed seems to us clearly to extend to all accruing dividends till the stock should be replaced. It was further contended that the statute of limitations must run from the 5th June, 1813, when there was a forfeiture of the bond for not replacing the stock. But, as is laid down by PARKE, B., in the recent case of Sanders v. Coward, 15 M. & W. 48, 56, although, on the first breach of the condition of a bond, the obligee may sue the obligor, and have judgment under Stat. 8 & 9 Wm. III. c. 11, as a security of a higher nature for future breaches, he is not bound to pursue that course. He may waive the right of action on the bond, in respect of the first breach, or any number of breaches, and be contented with the specialty security only for future breaches, |