it appeared that the arrearages of rent, for which the action was

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it was Held, That a Bank note payable to W. Pitt, or bearer, is in effect payable to the bearer; and, as between any bona fida holder and the Bank, such holder is to be deemed the bearer, to whom the Bank is originally liable. A fortiori, the holder may maintain a suit against a Stockholder upon default of payment of such note under the provisions of the Bank Charter making the Stockholders personally liable for such note in case it is dishonoured. The Statute of Limitations of New-Hampshire (which is, in this respect, a transcript of the Statute 21 Jac I. ch. 16. does not apply as a bar to an action of debt upon such statutable provision, for it is not founded upon any contract or lending without specialty. STORY, J. in delivering the Opinion of the Court, said; "Nothing can be clearer than that this is not a case of lending; and it would be very artificial reasoning to consider it a case of contract; it is certainly not a case of express contract; and the most that can, "by the utmost straining, be asserted, is, that it is a case arising "quasi ex contractu. It is in truth, however, a mere legal liability, "created by Statute, which may furnish the foundation or consid"eration of a contract express or implied, but is not itself a contract.” "In the present case the plaintiff has not declared on any contract, "nor has the law necessarily created one; and, therefore, in this "view, the plea cannot on principle be supported. But if it were "otherwise the Statute of Limitations applies only to contracts, not "grounded on a specialty. Now the present action is founded on "a Statute, which the law deems for this purpose a specialty; and "for this reason also the plea is bad. If the case were rew, there"fore, we should have no difficulty in over-ruling the plea; but the point has been directly decided by authorities, which cannot now "be controverted. (Jones vs. Pope, 1 Saund. R. 37. Hodsden vs. Harridge, 2 Saund. R. 61. 65. Com. Dig. Temps. (G. 15.) Talory vs. Jackson, Cro. Car. 513.)"

In a suit for the balance due on a Bond payable in 1775; the last payment that had been made was in 1774; the obligor died some time in the year 1782; and his executors, (against whom the suit was brought) qualified in the same year. The COURT said; "We are of opinion that the plaintiff is barred by the act of "1715, referred to, [North Carolina] more than seven years hav"ing elapsed from the death of the debtor before this suit was "brought." Exors. of Dry vs. Exors. of Roper, Cam. & Norw. Rep. 311, 312. But see Ogden, Admr. &c. vs. Blackledge, Exors &c. 2 Cranch's Rep. 272, CONTRA; It was there decided that, the ninth section of the act of Assembly of North Carolina, passed in 1715, which directs that, unless the creditors of deceased persons shall make their claim within 7 years after the death of the debtor

brought, were due six years and more before the action brought.

they shall be barred, was repealed by the act of 1789, c. 23, notwithstanding the act of 1799, which declares the contrary. A legislature cannot declare what the law was, but what it shall be.

A delay of twenty years to demand the money, or bring a suit upon a contract under seal, will raise a presumption of payment; but this may be repelled by shewing that the covenantee died after the money fell due, leaving the contract in the hands of his attorney, who did not deliver it to the administrators, or place it within their control, till a number of years after the covenantee's death, it not appearing that they had any knowledge of the contract at the time of making out the inventory of their intestates' estate. Jackson ex dem. Marvin & Al. vs. Hotchkiss, 6 Cowen's Rep. 401.

[3] An action for rent reserved by indenture of lease is not within the Statute of Limitations. Bailey vs. Jackson, 16 Johns. Rep. 210. Pease vs. Howard, 14 Johns. Rep. 480. Kane vs. Bloodgood & Al. 7 Johns. Ch. Rep. 116.

But where more than twenty years, before the commencement of the action, have elapsed since the last quarter's rent became due, payment of the rent will be presumed. But as the presumption of payment is not a legal bar, it may be repelled by circumstances. Bailey vs. Jackson, 16 Johns. Rep. 210.

To induce the presumption of payment from the age of a bond, 20 years must have elapsed exclusive of the period of the plaintiff's disability. Dunlop & Co. vs. Ball, 2 Cranch. Rep. 180.

"There is no legal bar by force of the Statute of Limitations "to a legacy.. It cannot be pleaded, but still the Court, justly "averse to giving countenance to very stale demands, adopts the "provisions of the statute as a guide in the exercise of its discre"tion." Arden's Ex'ors. vs. Ex'ors. of J. Arden, 1 Johns. Ch. Rep. 314. (per KENT, Ch.) Same print, Decouche & Al. vs. Savetier & Al. 3 Johns. Ch. Rep. 190. Durdon Ex'or. vs. Gaskill, 2 Yeates' Rep. 271.

In the case of Ward vs. Reeder, (2 Harr. & McHen. Rep. 154.) THE COURT said, "The recovery of a legacy, for a further reason, "cannot be barred, because it may be stopped until debts be paid, "and it would be uncertain when an action could be commenced."

But in the case of Kane vs. Bloodgood & Al. (7 Johns, Ch. Rep.

The Lord Richardson was of opinion that judgment should be given against the plaintiff, because the statute *extends to debts for arrearages of rent expressly; but afterwards changed that opinion, and agreed with the other judges of the Common Pleas, Hutton, Harvey, and

[ *87]

118.) KENT, Ch. after citing the case of Brereton vs. Gamul, (2 Atk. 240.) said, "This case very clearly shews, that, where there " is a legal and an equitable remedy, in respect to the same sub"ject matter, the latter is under the control of the same statute bar with the former." & Vide Smith, &c. vs. Carney & Alios, 1 Litt. Rep. 297, (Same point.)

It is a general rule in the books, that there is no statute of lim"itations to a charge upon an estate." Kane vs. Bloodgood & Al. 7 Johns. Ch. Rep. 116. (per KENT, Ch.)

Payment of a bond will not be presumed from lapse of time alone within a shorter period than twenty years. But where the demand is a stale one, the plaintiff will be held to strict proof of the amount of damages which he is entitled to recover. Cottle vs. Payne, 3 Day's Rep. 289.

A debtor executes a warrant of attorney to his creditor to confess judgment for the balance of an account as stated between them. The warrant of attorney is not a specialty which takes the case out of the Statute of Limitations. Clarke, Ex'or. &c. vs. Figes, 2 Stark. Rep. 207.

An action was brought against the administrators of a surety on a bond given by a collector of taxes, conditioned for the faithful performance of his duty as such collector! It was stated in the pleadings that the Court of Probate had limited a time for all claims of debt against the estate of the deceased surety, to be exhibited to the administrators; and that before the expiration of that term the collector had failed to settle with the treasurer, though there had been no proceedings against the Selectmen, or Inhabitants of the town, for the recovery of any of the taxes which the collector had failed to settle and collect, till after the expiration of the term limited by the Court of Probate for the settlement of the surety's estate. On demurrer, it was Held, "That the fail"ure of the Collector to pay the taxes to the Treasurer, was a "breach of the condition of the bond; and the plaintiff's having "neglected to exhibit their claim, according to the order of the "Court of Probate, they were by law barred and foreclosed of any recovery on said bond." Randal, &c. vs. York & Al. Adm'rs, &c. Kirb. Rep. 314.

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Yelverton, that this action of debt, being upon a lease, by indenture, is not limited to any time by the statute, but is out of it, and shall be brought as before the making of this statute. The words are, "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, 4 H. VI. c. 31. he ought to declare upon the indenture, and it is a contract, viz. a lease: and there is cause of using the indenture every half year; and it was resembled to the case upon the Statute of 32 H. VIII. of Limitation. A rent-charge, which is founded upon a deed, or a reservation upon a fee-simple by deed, is not within the Statute of Limitations. And nothing in this statute was intended to be limited which was founded upon a deed. And the words "debt for arrearages of rent," are supplied and satisfied by the arrearages of rent upon a demise without a deed. And as to the objection, that the proof of payment might be wanting, when the action is brought so long after the rent became due, that might be objected to debt on an obligation, where the day of payment is for a long time past.[1]

[1] In the case of Williams' Exors. vs. The Mayor, &c.of Annap olis, (6 Harr. & Johns. Rep. 529.) on appeal from a decree of the Court of Chancery; it appeared that Williams, in 1785, leased from The Mayor, &c. a lot of ground for 99 years, renewable forever at a fixed rent, and covenanted in the lease to pay the rent. He entered upon the property and paid the rent until 1803. The lease was not legally acknowledged or recorded. In 1812, The Mayor, &c. brought an action of covenant at law against Williams, to recover the rent, and failed, because of the defective execution and acknowledgment of the lease. Williams, and those claiming under him, remained in undisturbed possession of the property. In 1815, The Mayor, &c. filed their bill in Chancery against Williams, to compel him to account for the rents from 1803, and to accept a new lease formally executed. Williams afterwards died, and the suit was revived against his executors. Held, that the complainants were entitled to recover the rents, with interest, and that neither the judgment at law, nor the Statute of Limitations, could affect their claim. But that the executors of Williams, were not bound to accept a new lease. And the decree of the CHANCELLOR was affirmed by the COURT OF APPEALS.

So where debt(a) was brought on the Statute of Tithes,(b) for carrying away the corn, the tithes not being set out, 20 Jac. I. and 21 Jac. I. and so on, until the 11 C. I. the defendant pleaded for the last three years non debet, and for the residue, the Statute of Limitations. And hereupon the plaintiff de[*88] murred; and the record *being read, all the Court held that the statute does not extend to this action.

Nor to debt(c) for an escape of one in execution; because the words of the statute are, that all actions of debt grounded upon any lending or contract, without specialty, all actions of debt for arrearages of rent shall be brought within six years. And this action of debt is not within the statute for two reasons; first, because the action is not founded upon any lending or contract, therefore not limited or restrained by the statute; and, secondly, that the action of debt on an escape is founded on a specialty, namely, upon Statute Law, and so out of the Statute of Limitations.[1] For at Common Law(d) no action of debt lay against a gaoler for an escape out of execution. The statute 1 Rich. c. 12. gave to creditors an action of debt against the warden of the Fleet upon an escape out of execution; and the statute, by construction, extends to all other gaolers and sheriffs; and so the statute is a specialty upon which the action is founded, and it is therefore clearly out of the words and intention of the Statute of Limitations.

It was said by Buller, J.(e) that this action of debt depends upon two very old statutes, which never have nor can be construed literally; the first of which is Westminster 2. which is entitled, "The masters' remedy against their servants or accomptants." If we were to stop here, this case would not come

(a) Cro. Car. 513.

(c) I Saund. 35.

(d) 2 Inst. 382.`

(b) 2 Ed. VI. c. 13.
(e) 2 T. R. 132.

[1] "An action grounded upon a statute, cannot be barred; such as debt for an escape, &c." (PER CURIAM.) Ward vs. Reeder, 2 Harr. & McHen. Rep. 154. Ballard vs, Bell, 1 Mason's Rep.