#### ABSALOM B. BAINES, ADMINISTRATOR OF PILGRIM L. WILLIAMS *vs.*JOHN W. WILLIAMS.

June 1843

Where A. undertook to go to Georgia, sell a negro of the plaintiff and collect his hire, and with the proceeds pay off, *upon Ms return to tMs State,*a tain judgment, a light of action accrued to the plaintiff, as soon as A. returned to this State, and, instead of applying such proceeds to the satisfaction of the judgment, appropriated them to his own use; and of course the statute of limitations began to run from that time. -

No excuse, (beyond the exceptions in the statute itself,) such as the deception of the defendant, á¿c. will in a court of laiw prevent the statute from run--' ning;

The case of *Hamilton*v *Sheppard, 2*Murph. 115, cited and approved".

Appeal from the Superior Court of Law of Nash! County, at Fall Term, 184,2, his Honor Judge Battle presiding.

,This was an action of assumpsit, in which the plaintiff declared upon a special contract , and in all the common counts. The defendant pleaded the general issue and the statute of limitations. The writ was issued the 25th of September, 1840. Upon the trial, the plaintiff proved by a Witness, that, in the year 1829, he, as a constable of the county of Nash, obtained a judgment in favor'of one Jacob Boy-kin against the plaintiff’s intestate and the defendant, who was his son, on a claim in which the latter was surety; that it was then agreed between the intestate and his son, that the latter should go out to Georgia, where the father had a negro, should sell him, and collect the proceeds of the sale and of the previous hire of the negro, and should therewith, upon his return, pay off the judgment, the officer agreeing to'wait therefor until that time ; that in two or three months the defendant did go and return with about $200, the pro*482ceeds of the hire and sale of the said negro; and that, upon bis return, the witness applied (or the money, to which the defendant replied, *“*never fret, it is time enough yet.”

Another witness stated, that just before the death of the plaintiff’s intestate, which took place in June, 1838, he, the witness, as constable, served a *scire facias*on the intestate to revive the judgment aforesaid, when he appeared to be surprized that it had not before been paid off, and asked the defendant, who was present, why he had not done so, to which the defendant made no answer. The judgment was revived against both the intestate and the defendant, and a part thereof was paid by the intestate in his life-time, and the balance by the plaintiff as his administrator, in December, 1838. It appeared further, that the defendant had paid other judgments against his father and himself, to the amount of about one hundred doliars. The plaintiff then produced the record of a suit, commenced by a warrant issued the 18th of February, 1839, in the name of Jacob Boykin, to the use of *A.*B. Baines, against the present defendant, in which the plaintiff was non-suited at the Fall Term, 1840, to which it had been carried by successive appeals. A witness testified, that he was examined in that suit, and gave evidence in relation to the same matters, which form the subject of the present suit. The plaintiff also produced the record of a suit, brought by the present defendant, against the present plaintiff, which was by a rule of referred to certain arbitrators, who returned their award in favor of the then plaintiff, for $250, on which he had a judgment. One of the arbitrators testified, that the amount of the judgment in question was claimed of the present defendant, on the arbitration, but the arbitrators declined to take it into account, because they conceived that it was not embraced in the reference.

The plaintiff closing his case upon this testimony, it was objected by the defendant, that the action was barred by the statute of limitations, and that nothing had been shewn to repel that bar; of which opinion was the court. The plain*483tiff, in submission to that opinion, suffered a judgment of nonsuit, and appealed.

*B. F. Moore*for the plaintiff.

*Saunders*for the defendant.

Gaston, 3.

We see no sufficient reason to doubt of the correctness of the opinion expressed by his Honor. The law prescribes that all actions upon the case shall be brought within three years *next*after the cause of action, and not after. The undertaking of the defendant was, to go to Georgia, there sell a negro of the plaintiff’s intestate and collect his hire, and with the proceeds of the said sale and hire pay off, *upon his return to this*State, Boykin’s judgment. Now this undertaking was broken, whereupon the defendant’s return to this State, instead of applying these proceeds to the discharge of the judgment, he appropriated them to his own use. Thereupon the cause of action arose. The case of *Topham v*Braddick, 1 Taunt. 572, referred to in the argument of the plaintiff’s counsel, belongs to that class of cases, where, by the express or implied terms of the contract, the defendant is not bound to perform his engagement, until after a demand or request made. There such demand or request is in the nature of a condition precedent, and there is no breach of the defendant’s promise, and of course no cause of action arises, until such, demand or request be made. Nor is the case before us analogous, as is insisted, to the ordinary case of principal and surety. The promise of the principal to the surety is simply a promise of indemnity — to save the latter from damage by reason of the responsibility incurred at the principal’s request. This promise is not broken, and consequently no action arises to the surety, until the latter hath sustained damage. Here the engagement of the defendant was, not to indemnify the plaintiff’s intestate from liability on Boykin’s judgment, but directly and definitively to apply certain moneys of the plaintiff, that should come into'the defendant’s hands, to the *484payment of that judgment. When this engagement was broken, the intestate, without waiting to discharge Boykin’s judgment, might instantly have brought his action against the defendant.

As to the matters stated in the case, .tending to shew that the plaintiff’s intestate had been *kept*in ignorance, or had been deceived by the defendant in regard to the breach of the defendant’s engagement — or furnishing some excuse for the delay in bringing this suit, we have only to say, that in a court of [aw they cannot avail to take tne case out of the .operation of the statute. *Hamilton v Sheppard, 3 Murph.*115. Whether they can be urged with more .effect in another tribunal, it is unnecessary to enquire. The judgment of the Superior Court is affirmed.

Per Curiam. J u.d gment affirmed.