was held that notwithstanding that the debt of a bank to customers is one of a special nature, and for which no action can be brought without a previous demand, yet the statute runs within the period fixed for the limitation of such claim if no demand is made. But in a Delaware case, it was held that an action will not lie against a bank for a deposit, until after a demand has been made therefor; and such seems to be the rule generally adopted in this country. The engagement of a bank with its depositors is not to pay absolutely and immediately, but when payment shall be required at the banking-house, and therefore it is not in default or to respond in damages until demand and refusal; nor does the statute of limitations begin to run until demand has been duly made. But if the bank has rendered an account claiming the deposit as its own, or if it has suspended payment and closed its doors against its creditors, or has done any act that operates as a notice of its intention not to pay the deposit, a demand is dispensed with, and the statute begins to run from the date of such act. In an English case, POLLOCK, C. B., suggested a doubt whether the question was not one for a jury to decide whether money so lent were a loan or deposit.R

6

court are of that opinion. I entirely concur in the judgment of the rest of the court, that the set-off in the present case cannot be made available; for even assuming that this account ought not to be treated as money lent, but that there are peculiar circumstances in a banking account which distinguish it from any other, yet none of those circumstances appear on these pleadings, so as to justify us in considering this case differently from what we should if it were an ordinary case of money lent; and I therefore concur with the rest of the court, that the present rule must be discharged. At the same time, I must, certainly with considerable doubt and diffidence, confess the hesitation of my own opinion, whether there is not special contract between the banker and his customer as to the money deposited, which distinguishes it from the ordinary case of a loan for money. It seems to me that it is a question for the jury, who ought to decide what is the liability of the banker, and whether the money deposited with him is money lent or not. I could not concur in the judgment of the rest of the court without expressing this doubt, in which, however, they do not partake, as they are of opinion that money in the hands of a banker is merely money lent,

with the superadded obligation that it is to be paid when called for by the draft of the customer." PARKE, ALDERSON, and ROLFE were the other members of the court. See Thompson v. Bank of North America, 82 N. Y. 1, where it is held that the statute does not begin to run on a deposit until a demand has been made. Foley v. Hill, ante. But in the latter case there was no charge in the bill that the bankers had fraudulently or through gross carelessness omitted their duty to enter the interest.

1 Pothier on Contracts, quoted in Pott v. Clegg, 16 M. & W. at p. 325.

2 Johnson v. Farmers' Bank, 1 Harr. (Del.) 117.

8 Downes v. Bank of Charlestown, 6 Hill (N. Y.), 297.

4 Girard Bank v. Bank of Penn Township, 39 Penn. St. 92; Adams v. Orange County Bank, 17 Wend. (N. Y.)

SEC. 18. Distinction when Deposit is special. -The case is different where the banker has notice that the fund is a trust fund, even though he has no notice what are the particular trusts, or where money is deposited in a sealed bag, or which may otherwise be ear-marked and recovered in specie. The liability of an attorney for money of his client which has come to his hands, in the absence of fraud, is simply that of an agent or factor, and creates a simple-contract debt only.3 The rule is that where an attorney collects money for his client, the statute begins to run from the time of its receipt, and that, too, without regard to notice to, or a demand by, the client. But where the attorney has fraudulently concealed the fact that the claim is collected from his client, as if upon inquiry he informs him that it has not been collected, when in fact it has been, the statute does not begin to run except from the time when the client discovers the fraud. Thus, where a claim had been sent by an attorney to an agent in another State, and upon inquiry by his client he informed him that the claim was not collectible, when in fact it had been collected by such agent, it was held that the statute did not begin to run until the time of the discovery of the fraud, and that, too, whether the attorney was or was not acting in good faith when he gave the answer." But where the plaintiff claimed against his attorney for money received on his behalf, the statute was held not to be a bar to the summary jurisdiction of the court." An action for mesne profits is held to be within the act."

SEC. 19. Illustrations of Application of Statute in Special Cases. Money due by virtue of a custom is within this act. So, too, is an action grounded on a by-law made by a company under its charter; on the ground, apparently, that although in one sense a by-law is grounded on the statute or charter which authorizes it, yet it only operates against an individual by virtue of his own assent.' But, except where otherwise provided, actions founded directly upon a statute, a matter of record, or, in fact, any specialty, are not within the statute; but the

1 Bridgman v. Gill, 24 Beav. 302.

2 Carr v. Carr, 1 Mer. 541, n.; Devayne v. Noble, id. 568.

• McCoon v. Galbraith, 29 Penn. St.293; In re Hindmarsh, 1 Dr. & Sw. 129; Burdick v. Garrett, 5 Ch. 233; Watson v. Woodman, L. R. 20 Eq. 731.

4 Campbell v. Boggs, 48 Penn. St. 524; Alexander v. Westmoreland Bank, 1 id. 395; Fleming v. Culbert, 46 id. 498; Glenn v. Cuttle, 2 Grant's Cas. (Penn.)

273.

5 Morgan v. Tener, 83 Penn. St. 305. See also Wickersham v. Lee, id. 416.

6 Ex parte Sharp, W., W. & D. 354. 7 Reade v. Reade, 5 Ves. 749. In Mitchell v. Mitchell, 10 Md. 234, the court

10

were equally divided upon the question and the court below having held that the statute was a bar, the judgment stood. See Morgan v. Varick, 8 Wend. (N. Y.) 587, where the doctrine stated in the text was held.

8 Mayor of London v. Gorry, 2 Lev. 174; s. c. as City of London v. Goree, 1 Vent. 298; Tobacco Company v. Loder, 16 Q. B. 765.

9 Feltmakers' Co. v. Davis, 1 Strange, 385; Barber Surgeons of London v. Pelson, 2 Lev. 252.

10 Cork & Bandon Railway Co. v. Goode, 13 C. B. 286, where private property has been damaged by a public improvement, and the statute has given a remedy there

2

rule is otherwise as to actions only indirectly founded upon a statute1 or specialty. Thus, where an action for use and occupation lies for the recovery of the use of premises, although there is a lease under seal, the statute applies. So, where a surety upon a bond is compelled to pay money thereon for his principal, the statute runs upon his claim therefor, although it arose out of his obligation under a specialty. So, where a contract under seal is so executed as not to authorize a party injured by its breach to maintain an action thereon, he may bring assumpsit, and set up the contract by way of inducement.1 So, where the terms of a sealed instrument have been varied by parol, the instrument is thereby reduced from a specialty to a simple contract, and assumpsit lies for its breach, and consequently the statute applies.5 The statute applies to a set-off or any trust that is the ground of an action at law, to town or city orders, to a legacy not charged on land, to a vendor's lien,10 to actions against a sheriff for money collected on execution,11 and, indeed, every claim or demand that may be made the ground of an action of assumpsit. In this country, in all

6

for, the statute of limitations does not apply, Hannum v. West Chester, 63 Penn. St. 475; nor does the statute apply to a statutory proceeding for the assessment of damages for the construction of a railroad, McClinton v. Pittsburgh, &c. R. R. Co., 66 id. 404; Delaware, &c. R. R. Co. v. Burson, 61 id. 369; nor to a municipal assessment, Magee v. Com., 46 id. 358; Council v. Moyamensing, 2 id. 224. But if a party resorts to his common-law remedy for such damages the statute applies. McClinton v. Pittsburgh, &c. R. R. Co., ante. In Knapp v. Clark, 30 Me. 244, it was held that an action on a judgment recovered under the Mill Act was not within the statute.

1 South Sea Co. v. Wymonsall, 3 P. Wms. 144. Thus, an action of assumpsit lies upon an implied promise to discharge an obligation created by statute, Bath v. Freeport, 5 Mass. 326; unless some other remedy is expressly given, Hillsboro v. Londonderry, 43 N. H. 451; Watson v. Cambridge, 15 Mass. 286.

Conover v. Conover, 1 N. J. Eq. 403. 8 Penniman v. Vinton, 4 Mass. 276. 4 Hitchcock v. Lukens, 8 Port. (Ala.) 333.

5 Hydeville Co. v. Eagle R. R. & Slate Co., 44 Vt. 395; Mill-dam Foundry v. Hovey, 21 Pick. (Mass.) 417; Munroe v. Perkins, 9 id. 298.

Nolin v. Blackwell, 30 N. J. L. 170.

8

7 Winserv. Barnet, 4 Wash. (U. S. C. C.) 631. The effect of the statute upon trusts will be made the subject of a separate chapter; but it may be stated here that the rule that the statute does not apply to cases where the technical relation of trustee and cestui que trust exists, only applies in cases over which courts of equity have exclusive jurisdiction, Cocke v. M'Ginnis, M. & Y. (Tenn.) 361; nor where the trustee disclaims the trust, Walker v. Walker, 16 S. & R. (Penn.) 379; nor to implied trusts, Wilmerding v. Russ, 33 Conn. 67; but to open, continuing trusts the statute has no application, so long as the trust continues, Wilmerding v. Russ, ante; Johnston v. Humphries, 14 S. & R. (Penn.) 394; Seymour v. Freer, 8 Wall. (U.S.) 202; where, however, the fiduciary relation ceases, the relation of debtor and creditor exists, and the statute applies from that time, Bone's Appeal, 27 Penn. St. 492; Bull v. Lawson, 4 W. & S. (Penn.) 557. See chapter on TRUSTS. Constructive trusts are within the statute. Ashurst's Appeal, 60 Penn. St. 290.

8 People v. Lincoln, 41 Mich. 415.

9 Souzer v. De Meyer, 2 Paige Ch. (N. Y.) 574; American Bible Society v. Hebard, 41 N. Y. 619.

35.

10 Borst v. Corey, 15 N. Y. 505.

11 Elliot v. Cronk, 13 Wend. (N. Y.)

1

5

of the States the statute expressly or by fair inference embraces the action of assumpsit, as in Maine, Vermont,2 Massachusetts, Connecticut, New York, Delaware, Michigan, Wisconsin, Missouri, Arkansas, and Florida; while in Rhode Island, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, Iowa, California, Oregon, Minnesota, Kansas, Nevada, and Nebraska, the same class of actions is embraced under the head of debt, case, or actions upon written or unwritten contracts. In Louisiana all personal actions are barred after thirty years; while in Texas the statute embraces written contracts, and provides that they shall be barred in four years, and actions of debt upon contracts not in writing, in two years, which includes all that class of actions usually embraced under the head of assumpsit. Thus it will be seen that the construction put upon the statute 21 James I. by the English court is of material importance in the construction of our own, because while, as has already been said of the statute of James, it is loosely worded," so the same observations are also applicable to some of our own statutes, and in nearly all of them there are many matters left to be supplied by intendment. In order to ascertain to what class of actions the statute applies, it is necessary to ascertain what classes of claims may be the foundation of assumpsit or debt.

66

§ 20. Assumpsit, for what it lies. The action of assumpsit, as it formerly existed as an active remedy, and as it now exists in all the States in substance although not in form, was comprehended under the head of trespass on the case, and embraces all causes of action for the recovery of damages for the breach of any simple contract, oral or written, or express or implied, as checks," promissory notes, payable either in money or specific articles, as bills of exchange, 10 interest coupons upon municipal or other bonds," an award not under seal, 12 any acknowledgment of an indebtedness, certificates of deposit,18 for work done under a special contract under seal, but not according to the cov

1 Maine Rev. Stat. c. 146, § 9.

2 Comp. Stat. c. 58.

3 Rev. Stat. c. 197.

6

See Appendix, statutes of the several States.

5 Griffith's Annual Register, 680. 6 Carter v. Hope, 10 Barb. (N. Y.) 180; Howes v. Austin, 35 Ill. 396.

7 Hinsdale v. Bank of Orange, 6 Wend. (N. Y.) 84; Hughes v. Wheeler, 8 Cow. (N. Y.) 77; Woods v. Schroeder, 4 H. & J. (Md.) 276; Ellsworth v. Brewer, 11 Pick. (Mass.) 320; Tenny v. Sandborn, 5 N. H. 557; Eagle Bank v. Smith, 5 Conn.

71.

9

8

8 Payne v. Couch, 1 Greene (Iowa), 64; Stener v. Lamoure, H. & D. Supp. (N. Y.) 352; St. Louis, &c. Co. v. Souland, 8 Mo. 665.

9 Farmers', &c. Bank v. Payne, 25 Conn. 444.

10 Johnson v. Stark, 24 III. 25.

11 Brady v. Mayor, 1 Barb. (N. Y.) 584; Bates v. Curtis, 21 Pick. (Mass.) 247.

12 Morse v. Allen, 44 N. H. 33; Carver v. Hayes, 47 Me. 257.

13 Swift v. Whitney, 20 Ill. 144; State Bank v. Corwith, 6 Wis. 551.

11

enant, or when the contract has been rescinded,2 on the promise of a grantor to refund the purchase-money for land on account of a failure of title, to recover for goods sold and delivered, for services rendered on express or implied request," for a breach of warranty, express or implied, for the breach of a contract of bailment, for a subscription to the stock of a corporation; so for a refusal of a corporation to issue to the owner of stock a certificate thereof, or to recognize his rights as owner thereof, and for dividends due upon stock,10 for a pecuniary legacy not made a charge upon lands; 11 and it seems that it lies against a devisee of land charged with the payment of a legacy or annuity when the obligation to pay becomes complete; so, too, it lies for the purchase-money agreed to be paid for land,13 for the recovery of money paid for the conveyance of land to which the grantor had no title or no power to convey,14 or under an agreement to convey land, but which the payee refuses or is unable to convey; 15 and generally for money paid upon a consideration that has failed, whether it was paid under a simple contract or specialty,16 or for money paid under false and fraudu10 Ellis v. Essex Merrimack Bridge, 2 Pick. (Mass.) 243.

493.

1 Canby v. Ingersoll, 4 Blackf. (Ind.)

2 Bassett v. Sanborn, 9 Cush. (Mass.) 58; Hill v. Green, 4 Pick. (Mass.) 114.

& Miller v. Watson, 4 Wend. (N. Y.) 267. * Edmunds v. Wiggin, 25 Me. 505; Davis v. Sanders, 11 N. H. 259; Kingman v. Hotaling, 25 Wend. (N. Y.) 423.

5 James v. Buzzard, Hempst. (U. S. C. C.) 240. In Watchman v. Crook, 5 G. & J. (Md.) 246, it was held that assumpsit lies for work done under a contract under scal, though not according to the terms of the contract, if the work is accepted; but in such a case the action is for the value of the services, and not upon the contract itself.

6 Evertsen v. Miles, 6 Johns. (N. Y.) 138; Kimball v. Cunningham, 4 Mass. 505; Byers v. Bostwick, 2 Treadw. (S. C.) Const. 75; Rew v. Barber, 3 Cow. (N. Y.) 272.

7 Bank of Mobile v. Huggins, 3 Ala. 206.

Rensselaer, &c. Plank Road Co. v. Barton, 16 N. Y. 457, n.; Ogdensburgh, &c. R. R. Co. v. Frost, 21 Barb. (N. Y.) 541; Dayton v. Borst, 31 N. Y. 435; Barrington v. Pittsburgh, &c. R. R. Co., 34 Penn. St. 358.

9 Wyman v. Am. Powder Co., 8 Cush. (Mass.) 168; Gray v. Portland Bank, 3 Mass. 364; Sargent v. Franklin Ins. Co., 8 Pick. (Mass.) 90.

12

11 Woodruff v. Woodruff, 3 N. J. L. 552; Clark v. Herring, 5 Binn. (Penn.) 33; Goodwin v. Chaffee, 4 Conn. 163; Knapp v. Hannaford, 6 id. 176; Cowell v. Oxford, 6 N. J. L. 432.

12 Swasey v. Little, 7 Pick. (Mass.) 296; Adams v. Adams, 14 Allen (Mass.), 65; Sheldon v. Purple, 15 Pick. (Mass.) 528.

13 O'Neale v. Lodge, 3 H. & M. (Md.) 433; Shephard v. Little, 14 Johns. (N. Y.) 210; Bowen v. Bell, 19 id. 338; Wood v. Gee, 3 McCord (S. C.), 421.

14 Shearer v. Fowler, 7 Mass. 31; Claflin v. Godfrey, 21 Pick. (Mass.) 1.

15 Parker v. Tainter, 123 Mass. 185; White v. Wieland, 109 id. 291; Williams v. Bemis, 108 id. 91; Dix v. Marcy, 116 id. 416.

16 Williams v. Reed, 5 Pick. (Mass.) 482; Lawrence v. Carter, 16 id. 12; Arthur v. Saunders, 9 Port. (Ala.) 626. Thus, money paid for insurance when the policy never attached, Hemmenway v. Bradford, 14 Mass. 121; or under a deed which the person executing had no authority to make, Claflin v. Godfrey, 21 Pick. (Mass.) 1; for freight or passage money when the voyage is broken up by a peril of the sea or otherwise, Chase v. Alliance Ins. Co., 9 Allen (Mass.), 311.