Kingsbury v. Butler

Williams, J. It would seem as though there was no question-in-this case, except whether a note payable ivhen demanded requires any thing on the part of the payee more than a note payable on demand. There may be a distinction, and, as has been facetiously remarked, the law is a science ofdistinctions ; but if there is one, it is so subtle as to escape our observation. If the expressions mean the same thing, both of the questions which have been presented here, have been settled so long, and are so well recognized by every reporter and every elementary writer, that it is altogether useless to enquire, whether they were correctly settled. In Cro. Eliz. 48, it was decided, that a promissory note or bill, payable on. demand,, was due immediately, as it was founded. [461] on a precedent debt or duty; and that no request need be alleged in the declaration on such note. This was considered so well and definitively settled that- when Saunders, in the case of Birks vs. Trippet, 1 Saun. 32, was urging the difference between the case, where a promise was made to pay a precedent debt, and a collateral sum, upon request, Twisden, Judge, interrupted him and said, “ what makes you labour so, the court is of your opinion, and the matter clear.” When the promise to pay on demand, is founded on a precedent debt, it is due immediately. So an action may be commenced' immediately. The statute of limitations gives no longer period’ than six years on notes not witnessed, and fourteen years on notes, attested, within whi.ch an action may be commenced. In Collins vs. Denning, reported in 3 Salk. 227, and 12 Mod., it was held that the proper plea to a declaration on a promise to pay on demand, was “non assumpsit infra sea; annos,” because the cause of action accrued from the time of making the promise, and not from the demand, which was unnecessary. In Butter’s JYisi Prius 181, these cases are recognized, and, indeed, it necessarily fol-Jows from the doctrine, that an action may be commenced immediately on such a note, that the statute of limitations will run in six years from the date of the note. The decision of the county court, in their charge to the jury was right, and in accordance both with principle and precedent. The law being so established, the course taken by the county court in excluding the evidence offered, was also correct. From the view already taken, the evidence of the loss of the note would have been of no avail to the plaintiff and was wholly irrelevant. If it had been necessary ior the plaintiff to have proved a demand, previous to commencing his action, as it would have been-if the promise were to do a collateral thing, which would create no-debt or duty unless demanded, the defendant might have pleaded the stutute of limitations, and relied upon the presumption, arising from the lapse of time, that a demand had been made- more than six years before the commencement of the action. In such a case, and to rebut such a presumption, the evidence offered by the defendant might have been material. But as no such demand was necessary in this case, nor was the defendant driven to rely on such presumption, but, on the contrary, the cause of action accrued, and the statute of limitations commenced running, from the date of the note, the evidence was improper, and was-properly'rejected. The judgement of the county court is- therefore affirmed»