#### A. P. Smith *v.*Benjamin R. Bythewood.

On a note payable on demand, the maker is hound to pay immediately, and is not entitled to days of grace. The holder may sue on the same day the note is made. Any other demand than by suit is unnecessary.

Whenever the plaintiff may sue the defendant, a cause of action may he said to *have accrued*to him, and from that time the statute of limitations begins to run; consequently, upon a note payable on demand, the statute commences from the date, if it have one, and if without date, from its *delivery.*

*Before O’NEALL, J., at Beaufort, Spring Term,*1838.

The following is the report of his honor the presiding judge:— “ This was an action of assumpsit on a due bill, without date, payable on demand to J. J. Beck, or bearer. The defence was the statute of limitations. The due bill was passed by Beck, the payee, to the plaintiff, for a sum less than its amount, and upon an understanding that if it could not be collected from the defendant, he *246would indemnify the plaintiff. From the proof, I thought that the due bill was made anterior to the year 1831. This suit was brought in 1837. It was proved that the plaintiff said, that Beck told him the note was out of date. The note was presented by the plaintiff for payment, which was refused, a few days before the action was brought. I thought, and so charged the jury, that upon such a paper as the present, no cause of action existed until there was a demand of payment. Being without date, there could not be said to be a present indebtedness. The whole liability of the defendant to pay, depended upon the demand of payment: until that was done, the plaintiff’s cause of action was neither “given nor accrued,” and hence the statute could not in this case bar the plaintiff’s action.”

The jury found for the plaintiff.

The defendant appealed on the annexed grounds: 1. Because his honor charged the jury, that the maker of a promissory note payable to A. B., or bearer, on demand, and without date, cannot avail himself of .the statute of limitations in a suit by the original payee, although the time of the making of the note be distinctly proved by testimony aliunde. 2. Because notice of the time of the making of the note was given to the plaintiff before he received the noto from the original payee, and that fact, with the other circumstances of the case, entitled the defendant to a verdict. 3. Because the note having been made before the year 1831, and the suit not commenced until the beginning of the year 1837, and no evidence of a promise since 1831 — the defendant was protected by the statute of limitations. 4. Because the verdict was contrary to law and evidence.

Curia, per Evans, J.

In relation to notes payable on demand, it is well settled, the maker is bound to pay immediately, he is not even entitled to days of grace. The holder may sue on the same day the note is made. A demand by his writ is sufficient. Whenever the plaintiff may sue the defendant, a cause of action has accrued to him, and from that time the statute of limitations begins to run. The case is not like that of sheriffs and other agents, who are not in default until they refuse to pay the money, and conse*247quently the statute does not begin to run until after demand. But it is unnecessary to discuss this question, as it is conceded to be the settled law both of England and of this State, that the statute of limitations commences to run from the date of a note, payable on demand. This was decided by the Appeal Court at Columbia, a few years ago, in a case, the name of which I have been unable to ascertain. It was contended in this case, that as this note is without date, it should be governed by a different rule'. I do not perceive any reason for this distinction. A note, like a deed, is nothing until it is delivered. Its legal efficacy as a contract, commences with delivery, and the maker is bound to pay immediately. It *follows from*this, that if no action be brought within four years after the note has been delivered, the statute of limitations is a bar to the action. The motion for a new trial is therefore granted.

Note. — A note payable on demand is not entitled to days of grace, but an action maybe immediately brought'without any other demand being made. Cammer ads. Harrison, 2 M'Cord. Rep. 246.

Where a promise is made to pay a debt, *indefinitely as to time,*the statute of limitations begins to run from the time of the promise. — Admrs. of McDowall v. Ex'ors. of Goodwyn, 2 M. Con. Rep. 441.

If a promissory note be made payable *upon*demand, it seems that no express demand is necessary; and consequently that the limitation commences from the date of the note. — Chitty on Cont. 636. S. P. 4. Pick. 488. 7 Har. & John, 14. 1 Har. & Gill. 439. R.

*De Treville,*for the motion.

*Martin,*contra.

Gantt and Butler, Justices, concurred. Earle, J., absent at the hearing, but concurred in the judgment.