brought were due six years and more before the action brought. Richardson was first of opinion that judgment should be given against the plaintiff, because the statute extends to debts "for arrearages of rent" expressly; but he afterwards changed that opinion, and agreed with the other judges, that this action of debt being upon a lease by indenture is not limited to any time by the statute and is out of it. The words are, he said, "all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent," &c., and this is an action upon a contract by specialty. He likened it to the case of a rent charge, which is founded upon a deed, and is not within the statute of limitations.1 So in an action of covenant, on an indenture of lease, in the Supreme Court of New York, it was conceded that the rent demanded, having been created by deed, of which the. commencement was shown, was not within the statute of limitations; and the only point was, whether the payment of rent was to be presumed from lapse of time.2 The words "debt for arrearages of rent" are indeed sufficiently supplied and fully satisfied by the arrearages of rent upon a demise without deed. And for such arrearages there seems to be no doubt but that the statute applies. Thus the statute is a bar to one tenant in common against another on an account. But it is necessary to be discriminating as to whether a suit is brought upon an indenture. A bill in equity for an account alleged a partnership between two by indenture, and a dissolution by the death of one of the partners, and a parol promise by the survivor to account to the plaintiff as executor of the deceased partner. It was held that the suit was not founded upon the indenture, but upon the subsequent

3

Freeman v. Stacy, Hut. 109. Vide also Hodson v. Harris, 2 Saund. 66; Collins v. Goodal, 2 Vern. 235; Stackhouse v. Barnston, 10 Ves. 453; Kane v. Bloodgood, 7 Johns. Ch. 90. The act of Pennsylvania of 1713 (see App.), for the limitation of actions, is not a bar to an action for the recovery of rent reserved by indenture. Davis v. Shoemaker, 1 Rawle (Penn.), 135; [McQuesney v. Heister, 33 Penn. St. 435.] 2 Bailey v. Jackson, 16 Johns. 210. So also held in Davis v. Shoemaker, 1 Rawle (Penn.), 135.

Kane v. Bloodgood, 7 Johns. Ch. 90; [Elder v. Henry, 2 Sneed (Tenn.), 81. Where a bill was filed by one tenant in common, after a partition, against the other who had been in exclusive possession, for an account of the rents and profits, it was held, that the statute of limitations did not begin to run against the demand until after the partition; overruling Wagstaff v. Smith, 2 Dev. (N. C.) Eq. 274; Wagstaff v. Smith, 4 Ired. (N. C.) Eq. 1. But the statute is no bar to the right to distrain for rent. Vechte v. Brownell, 8 Paige (N. Y.), Ch. 212.];

parol contract, and therefore that the statute might be pleaded in bar.1

88. With regard to bonds, although under certain circumstances they may be presumed satisfied, yet being specialties, they are not within the provision of the statute.2 In a case in the State of Maine, it appeared that the statute of 1821 provided, that certain actions shall be saved from the operation of the statute of limitations, where the action shall have been actually declared in before the expiration of the limit, and where there was a failure of service of the writ. The decision of the court was, that the statute of 1821 did not apply to actions on bonds, or other specialties.3

89. But where the whole of a bond has been paid by one obli.gor, and he brings assumpsit against his co-obligor for contribution, it was by Lord Kenyon considered doubtful whether the statute would be a good plea. He observed, in an action by the executor of one obligor against the co-obligor for contribution, that he had considerable doubts whether the statute of limitations attached on the case. The demand, he said, arose under a deed; and there had been a case in which a very considerable law authority had been of opinion that such a debt was entitled to the same limitation as the deed itself. In the year 1808, the point which was thus doubted by Lord Kenyon came before the Supreme Court of Massachusetts, and Parsons, Ch. J., said he had considered the point, and was satisfied that such a plea was good. The action was assumpsit by a surety on a bond, who had paid part of the debt against the principal. He could not distinguish this case in principle from a case where the action may be brought by a surety on a promissory note against the principal, for not indemnifying him against the payment of the note. In such a case, he said, it was not denied, that the statute would be a good plea, because the reason assigned is, the action is not founded on a bond. In

1 Codman v. Rogers, 10 Pick. (Mass.) 112.

2 Clark v. Hopkins, 7 Johns. Ch. 556; Mayor, &c. v. Horner, Cowp. 102; Summerville v. Holliday, 1 Watts (Penn.), 507.

3 Brown v. Houdlette, 1 Fairf. (Me.) 399. [In Maryland, actions on guardians' bonds as well as on bonds of executors and administrators are limited by statute, and the statute begins to run from the time of passing the bonds, that is, their approval by the Orphans' Court, and not from the filing or the date. State v. Miller, 3 Gill (Md.), 335.]

4 Cole v. Saxby, 3 Esp. 160.

the case before him, the action, he thought, was not founded on a bond, but on a promise, or simple contract (although the executing of the bond as a surety is the consideration of the promise), and the breach of the promise, he held, was the not indemnifying the plaintiff against the payment of the bond, and is not the non-performance of any contract to which the principal was bound by deed to the surety.1

90. The plea of the statute of limitations to an ordinary action of a legacy has never been known; it has long been a settled principle that the statute does not apply in such a case; and it has been ever so understood in England, both in the common-law and ecclesiastical courts.2 Chancery has refused to adopt the rule by analogy to the statute, because an executor stands in the relation of a trustee, and whilst the trust subsists, the statute has not been permitted to run.3

91. Where a debtor executed a warrant of attorney to confess judgment for a balance of account as then stated between them, the warrant, it was held, is not a specialty which takes the case out of the statute. But the plaintiff declared in this case upon an account stated, and had merely used the warrant of attorney, as an acknowledgment by the defendant, and not as a document upon which the action was founded.4

92. Though a promissory note is secured by mortgage, it still remains a simple contract; and its being recognized by a deed under seal does not change its character. The fact that real estate is pledged as collateral security for its payment, by way of mortgage, cannot render it a specialty.5

1 Penniman v. Vinton, 4 Mass. 276. In Maryland, a long time ago, specialties were expressly provided for. The statute of 1715, c. 23, enacts that no specialty whatsoever shall be good and pleadable, or admitted in evidence, against any person or persons of this province, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years standing. See Richards v. Maryland Insurance Co., 8 Cranch, 84; Watkins v. Harwood, 2 Gill & Johns. (Md.) 307; Carroll v. Waring, 3 Id. 491; Mullikin v. Duval, 7 Id. 355.

2 [Perkins v. Cartwell, 4 Har. (Del.) 270. But in Mississippi it is held that, after demand, by a specific legatee, upon the executor, the term for payment fixed by the will having expired, the statute runs. Young v. Cook, 30 Miss. (1 George) 320. Barred by statute in Louisiana in ten years. Nolasco v. Lurtz, 13 La. Ann. 100.]

* Thompson v. M'Gaw, 2 Watts (Penn.), 161. And see post, Ch. XVI. § 172. [But after settlement between the executors and legatee, the trust is ended and the statute begins to run. Young v. Cook, 30 Miss. (1 George) 320.]

4 Clarke v. Figes, 2 Stark. 234.

5 Jackson v. Sackett, 7 Wend.

[And see ante, § 73.]

(N. Y.) 94; Clarke v. Figes, 2 Stark. 234. [But

93. By analogy to the statute of limitations, an artificial presumption has long been established, that where payment of a bond or other specialty was not demanded for twenty years, and there has been no circumstance to show that it was still acknowledged to be in existence, the jury are to presume payment at the end of twenty years. This doctrine has become so well settled, and has been so often recognized, that it is not requisite to cite any of the countless authorities which sustain it. It was not, however, a part of the ancient law, and, according to Mr. Justice Buller, originated with Lord Hale.1

94. In England, by the statute of 3 and 4 Will. IV. c. 42, it is now enacted, that all actions upon specialties shall be commenced within twenty years, and not after. But it is stated that, if this statute be not pleaded, the fact of payment may still be presumed from lapse of time or other circumstances which render the fact probable.2

though the note be barred, the lien of the mortgage remains good. Sparks v. Pico, 1 McAll. U. S. C. C. (Cal.) 497; Nevett v. Bacon, 32 Miss. (3 George) 212; Longworth v. Taylor, 2 Cin. (Ohio) 39; Sichel v. Carrillo, 47 Cal. 493. Contra, Kyger v. Ryley, 2 Neb. 20. A lien upon land, however, for the purchase-money, will be barred when an action for the purchase-money would be. Littlejohn v. Gordon, 32 Miss. (3 George) 235. In New Hampshire it is provided by statute that, when a note is secured by mortgage, the plaintiff may sue on the note so long as he has a right of action on the mortgage; and this statute includes notes secured by mortgages of personal property. Demerritt v. Batchelder, 8 Foster (N. H.), 533. But with foreclosure and appropriation of the property pro tanto in payment, the right to sue on the note ceases. Cross v. Gannett, 39 N. H. 140. And where personal property, as cotton, is deposited by the maker of a promissory note, with the assent of sureties, under the agreement, that, when sold, its proceeds shall be applied to the payment of the note, it will not have the effect to withdraw the note from the operation of the statute of limitations, although the cotton is sold and its proceeds applied in payment, after the maturity of the note, and within six years before action brought. Lyon v. State Bank, 12 Ala. 508.]

1 Oswald v. Leigh, 1 Durnf. & East, 271. [And this presumption from lapse of time arises and may be a bar, whether the party setting it up has resided within the State or not. Sanderson v. Olmstead, 1 Chand. (Wis.) 190.]

2 Best on Presumptions, &c. 188. Where an acknowledgment has been made in writing by the debtor, charging him in direct terms, or by his agent, or if there has been a part payment, or part satisfaction, of the principal and interest then due, the action may be brought within twenty years next after the time of such acknowledgment, part payment, or part satisfaction. But such special matter must be replied, and in confession and avoidance. 3 and 4 Will. IV. c. 42; Mansel on Lim. 25.

CHAPTER XI.

PROMISSORY NOTES AND BILLS OF EXCHANGE.

In treating of the currency of the statute upon simple contracts, we commence with these written obligations, common and indispensable in commercial traffic.

95. It has been held invariably, that if a promissory note is made payable in money, on demand, the statute commences running from the date of the note; and that no special demand is necessary. The rule is the same if such note be payable with

1 Norton v. Ellam, 2 Mees. & Welsb. (Ex.) 467; Presbrey v. Williams, 15 Mass. 193; Little v. Blunt, 9 Pick. (Mass.) 488; Codman v. Rogers, 10 Id. 112; Easton v. Long, 1 Mo. 662; [Caldwell v. Rodman, 5 Jones, Law (N. C.), 139; ] Ruff v. Bull, 7 Harr. & Johns. (Md.) 14; Peaslee, Administrator v. Breld, 10 N. H. 489. In Scotland, if a promissory note is payable on demand, it is held, that the time limited runs from the date. Stephenson contra Stephenson, 11 Fac. Coll. 639. The expression in the Scottish statute is "from the term at which the sums in the note become exigible;" and this expression, it is held, will support the aforesaid construction. 1 Bell's Com. 305; [Wilks v. Robinson, 3 Rich. (S. C.) 182. From the delivery. Hill v. Henry, 17 Ohio 9. And see post, § 103. A provision to pay a note "at any time within six years," is a promise to pay on demand, though not in itself a note, and the statute runs from the date of the promise. Young v. Weston, 39 Me. (4 Heath) 492. A note given as a part of the guaranty capital of a mutual insurance company, and payable at such times and in such portions as the directors may require, but the whole payable at all events, is due from its date, and is barred in six years. Bell v. Bates, 33 Barb. (N. Y.) 627; Colgate v. Buckingham, 39 Ib. 177. Howland v. Edmonds, 24 N. Y. (10 Smith) 307, reversing s. c. 33 Barb. (N. Y.) 433. But see Hope Ins. Co. v. Weed, 28 Conn. 51. But a premium note given as the basis of assessments for losses, and payable in such portions and at such times as may be required to pay the losses, is due only upon loss and assessment therefor, and the statute does not begin to run till that time. Savage v. Medbury, 19 N. Y. (5 Smith) 32; Howland v. Edmonds, 24 N. Y. (10 Smith) 307; Sands v. St. Johns, 36 Barb. (N. Y.) 628; Howland v. Cuykerdall, 40 Ib. 320. So of a guaranty note assessable in like manner. Hope Mut. Ins. Co. v. Perkins, 2 Abb. App. Dec. (N. Y.) 383; Hope Ins. Co. v. Weed, 28 Conn. 51. And see post, § 115, note. The right to assess the stockholders of an insolvent bank, to obtain funds with which to redeem its bills, accrues when the bank is temporarily enjoined from further doing business, if the injunction be afterwards made perpetual. Conn v. Cochituate Bank, 3 Allen (Mass.), 42; and see post, § 142, note. C. being about to open an account with a banker, gave him a note signed by C., jointly with S., the defendant, for £200 on demand. At the same time they signed and delivered to the banker a memorandum, stating that the note was given as collateral for the banking account to be kept by C., and that