#### *B. B. Sams. vs. Albert Rhett.*

Plaintiff one of the brothers of Francis Sams, (dec’d,) paid to the defendant, attorney for the executors of the late Gov. Hopkins, of Georgia, <¡{815, who, it appears had a judgment against the said Francis Sams, for $1031 31, with interest from 18 Feb. 1818, besides costs. At the time of the payment of the money to defendant, by plaintiff, a compromise was effected between them, and this sum of$815, was to be considered as an entire discharge of the whole debt, or defendant was to procure from the executor an assignment of the case to plaintiff, as plaintiff might elect.

Subsequent to the date of the compromise, defendant, as attorney of the executors, assigned to plaintiff the case above alluded to, but plaintiff, after consultation with counsel, refused to accept defendant’s assignment, as he was not the attorney, in fact, of the owner of the case, or even attorney on record in the case.

Defendant refused to become responsible for the amount paid, but promised plaintiff, that he would not pay over the amount he had received, until he procured an assignment to him from the executors of Hopkins. Some short time after this promise of defendant, to procure the assignment of the case, or that he would withhold the money, defendant paid over the money to the executor, C. H. Hopkins. Under the circumstances of this case, it was held, first, that this was a personal undertaking, on the part of defendant, and was founded on a sufficient consideration. It was held, secondly, that the cause of action, which accrued to the plaintiff, on the non-performance of this personal undertaking of defendant, was ban-ed by the *statute of limitations.*More than four years having elapsed, from the payment of the money, by Rhett to Hopkins, and the bringing suit.

*Before*Wardlaw, J., *at Gittisonvitte, Feb.*1842.

The following is the history of this case.

In January or February, 1836, Charles H. Hopkins, son of Gov. Francis Hopkins, late of Georgia, came to Beaufort, bringing with him the exemplification of a judgment, obtained November, 1823, in the Superior Court of M’ln-tosh county, Georgia, by John Floyd, Richard Richardson, John Camochan and W. Camochan, qualified executors of Francis Hopkins, against Francis Sams, for $1031 31, with interest from 18th February, 1818, and $12 costs, upon a bond made by Francis Sams, payable to William Robertson, and assigned to Francis Hopkins. As Charles H. Hopkins testified, he was authorized to take all proper steps for the collection of the debt ascertained by the said judgment, but it did not appear that he ever had a power of attorney. Francis Sams had removed from Georgia, and died in this State, before 1836. The defendant, then an attorney at law, under the name of Albert Moore Smith, was retained by C. H. Hopkins. A citation to procure administration of *172the estate of Francis Sams, was sued out, and some proceedings were threatened against Louis Sams, and the plaintiff, B. B. Sams, brothers of Francis Sams. What interest these brothers had in the estate of Francis Sams, did not appear, except that C. H. Hopkins, in his testimony, spoke of the plaintiff’s having received negroes, which he says were *smuggled*from Georgia, by Francis Sams. The plaintiff applied to Col. De Treville for counsel, and having been advised to pay nothing, resolved, notwithstanding, to compromise, rather than permit any interference, by C. H. Hopkins, with the estate of Francis Sams.

Terms of compromise were accordingly adjusted between the plaintiff and the defendant, and the following agreement signed by them.

“ Beaufort, *February*9, 1836.

“Executors *of*Hopkins ) *vs.*> Francis Sams. )

“ It is agreed between the parties, whose names are hereunto subscribed, that on condition of $700 being deducted from the whole debt in this case, and one half the residue then relinquished, Dr. B. B. Sams shall pay the remaining half, and Albert M. Smith, Attorney of-Hopkins, shall then give a general and entire discharge of all demands, in the said case, — or, as the said B. B. Sams shall elect, an assignment of debt to him.

■“ ALBERT M. SMITH.

*Attorney of Ex’or. Hopkins.*

“BERNERS B. SAMS.'”

Before the payment of any money, on 10th February, 1836, (as Col. De Treville fixed the date, by reference to papers,) the plaintiff and defendant came to the office of Col. De Treville, counsel for plaintiff; C. H. Hopkins not being present. The defendant then had in his hand the exemplification of judgment, with the following assignment annexed to it, viz :

“'Executors op Francis Hopkins 1 *vs.*> *Debt on bond.*Francis Sams. )

“In consideration of the sum of eight hundred and fifteen *173dollars, paid me in hand, the receipt whereof I hereby acknowledge, I assign all right, title and interest, which the plaintiffs in the above suit have, in the judgment obtained by them, against the said Francis Sams, (an exemplified copy of which judgment is hereunto annexed,) to Dr. Berners B. Sams, of Beaufort, South Carolina.

“ALBERT MOORE SMITH, *Plaintiff’s Attorney.*

“ Witness, Benj. R. Bythewood.

“ Beaufort, *South*Carolina, *Feb.,*10, *A. JD.*1836,”

Col. De Treville being informed of the proposition to assign the judgment, but not knowing of any written agreement between the parties, (which he never saw or heard of, before the trial,) objected that the defendant was not attorney on record, that even an attorney on record could not assign a judgment, and that Charles H. Hopkins was only one of several persons interested in the judgment; and in the conversation that ensued, Col. De Treville asked of defendant, suppose Dr. Sams should pay, will you be responsible, if he should be called on again *1*Defendant answered, No, I won’t do that; but, *I toill promise not to pay the money*over, *until I procure a proper assignment of the judgment, or an assignment from the proper parties.*It was then distinctly understood, that the money should be paid, and that an assignment should be procured from those who had authority to assign. Either from what was said, or as a legal inference, the witness, Col. De Treville, collected, that the assignment should be procured from those who had authority to assign, within a reasonable time. Col. De Treville, and as he believes, the plaintiff, understood in this conversation, that the defendant was acting for C. H. Hopkins, and that C. H. Hopkins, was one of the heirs of Francis Hopkins and in some way represented the executors of his father ; although no authority was shown, or distinctly mentioned. But the plaintiff treated with the defendant, and not with Charles H. Hopkins. The parties left the office: shortly afterwards, plaintiff returned, with a receipt for the money, and the exemplification, with the assignment above copied, annexed to it; and then, the plaintiff requested Col. De Treville to remember what *174had taken place; and in consequence, the Colonel fixed it in his memory, and is very precise, especially as to the words of the defendant’s promise. On the 25th February, 1836, the defendant settled with C. H. Hopkins, and paid to him what C. EL Hopkins, (who lives in M’Intosh county, fifty miles from Savannah,) .examined by commission, without mentioning the sum, says was “in full.” A receipt, given by C. H. Hopkins to defendant, was produced by the defendant, which showed a payment 25th February, 1836, on the judgment executors *Hopkins vs. Francis Sams,*by defendant, to C. H. Hopkins, of $407 50, “ in full.” No notice of any payment seems to have been given to 'plaintiff; and C. H. Hopkins says, the settlement between plaintiff and defendant took place 25th February, 1836, at the voluntary offer of plaintiff, and that the defendant was authorized’to accede to the terms proposed by plaintiff.

It did not appear that any thing further occurred in the matter, until the summer of 1840. Some conversation, not proved, then'took place between the parties; and in a conversation with Edmund Rhett, Esq. speaking of the assignment, and money paid, the plaintiff said, “mine is not a legal, claim — I rely on his honor.” On 20th July, 1840, the plaintiff sent by Mr. Ellis, to the defendant, the following letter, viz:

“ *To A. Rhett, Esq.'*

“ Dear Sir. — You will oblige me by your final answer, (for which I before^ applied unsuccessfully,) to the following questions : Have you procured a regular assignment to me, from the executors of Francis Hopkins, or any other person duly authorized to make such assignment, of the judgment in the.case entitled the executors of *Francis Hopkins vs. ' Francis Sams*1 If *you have, be good*enough *to*deliver it to. the gentleman who hands you this ; if you have *not*obtained the. *assignment*of the said judgment, or cannot obtain it, have you paid over the money, which .1 deposited with you on the 10th February, 1836, to wit, eight hundred and fifteen dollars, to any, and what person, interested in the said judgment ¶ If you have *not,*you will oblige me by *returning it to me,*as early as you can conveniently do so. Your answer to the above, you can *175either commit to writing, or if you prefer, communicate it verbally to the gentleman who hands you this.

“Your humble servant,

“BERNERS B. SAMS.

“ Beaufort, *July*20, 1840.”

The defendant said to Ellis, that he had procured no assignment, besides that procured from Mr. Hopkins : and immediately afterwards, by some other hand, transmitted to the plaintiff' the following answer, viz :

“ Beaufort, *July*20, 1840.

“Dear Sir. — Your note, through Mr. Ellis, I have received, and I returned a verbal answer; but it appearing, on a second perusal, somewhat more formal than such communications usually are, I think it best, for both of us, to put my answer into this written form.

“As I have told you before, I do not remember the transaction referred to as you do ; but am sincerely disposed to use any influence I have with Mr. Hopkins, to procure such another assignment of the judgment, as will remove your fears, wholly groundless and unnecessary,, as I am convinced they are. You are really in no more danger of being compelled to pay the money again, than to discharge the national debt of Great Britain. No law, with which I am acquainted, requires it of you. At the same time, I repeat what I have said from the first, that I acknowledge no legal claim on me, or claim of honor, to take any step in the matter. I will write to Mr. Hopkins, as soon as I get home. Politics, with one thing and another, have put it out of my mind till this time; but I have every disposition to respect your apprehensions, by doing all in my power to relieve them.

“ I remain, very respectfully, your ob’t. serv’t.

“ ALBERT RHETT.

“P. S: — This is the only answer Mr. Ellis is authorized to deliver you.”

The plaintiff replied as follows:

“ *To A.*JRhett, *Esq.*

“ Dear Sir. — So much of your verbal answer, as satis*176fies my first enquiry, viz. “ *That you had not procured any other assignment of the judgment, in the case entitled the executors of Francis Hopkins vs. Francis Sams,*than the one which had already been given by Mr. Hopkins,” had been delivered by Mr. Ellis, before I received your note. I regard it as a sufficient answer to the first question. In your note, I find no answer to my second question, which permit me to repeat. “ Have you paid over the money, which I deposited with you on the 10th day of February, 1836, (to wit, eight hundred and fifteen dollars, to any, and what person, interested in the said judgment'?” Be good enough to answer this question, yes, or no.

“ If you have not paid over the money, will you be *good enough*to acknowledge this as a demand upon you for the amount, to be remitted to me in any safe way you may please to select. Neither the probability of my being called on again by claimants under the judgment, nor the extent and nature of *your obligations*to me, are, in my opinion, proper subjects for discussion here. You must therefore pardon me for declining to reply to so much of your letter, as contains your opinion upon these points. Should you withhold, or deny me the information sought, I shall regard your silence as evidence that you *have*paid the money over; or that, still having it, although unable to obtain a *proper and legal assignment*of the above mentioned judgment, you refuse to return it to me.

“ Waiting your reply, I remain, your obed’t. serv’t.

“BERNERS B. SAMS.

The defendant rejoined as follows :

“ *Graliamoille, July 29,*1840.

*“ Dr. B. B.*Sams—

“ Bear Sir. — I have no objection to answer, with perfect frankness, any and all of your enquiries, about your business, with the executors of Hopkins.

“ But your manner of addressing me is not, as I conceive, sufficiently polite. You ought to know me well enough, not to forget, that it is not in your power, or that of any man, to draw from me any thing at all in act or expression, while you suffer your feelings to make you depart *177from that style of courtesy, which it belongs as much to your own character, as a gentleman, to observe as mine.

“You should remember, too, that in asking for information, it is but common fairness to state the purpose for which you want it. When you satisfy me that you have not intended to be rude, and as to the object you have in view by your interrogatories, I will return explicit answers.

*“*In the mean time, I remain your obed’t. serr’t.

“ ALBERT RHETT.”

This suit was commenced in August, 1840. The defence was rested on three grounds: 1 *Nudum Pactum. 2.*That defendant contracted as agent, and incurred no personal liability. 3. The statute of limitations.

The Court instructed the jury, that there was consideration for the parol promise, made in Col. De Treville’s office; that by it, the defendant bound himself individually, and not those whose claims he was urging ; and that from the time when this promise was broken by payment of the money, the statute of limitations commenced to run as to the amount paid ; that if half only of the $815 was paid over, (which seemed to be the result of connecting the receipt with C. H. Hopkins’s testimony,) then the recovery of half was barred, and as to the other half, the statute did not commence to run until the demand, after reasonable time for procuring the assignment. If, in the opinion of the jury, all was paid over, the whole recovery was barred.

The jury returned a verdict for the defendant. And from their verdict, the plaintiff appeals.

*Grounds of Appeal.*

1. Because his Honor charged the jury, that as to one half of the amount claimed, the statute of limitations commenced to run from the time the defendant paid it to Charles Hopkins, on the 25th February, 1836 ; and that if the proof had been sufficient, (and in his Honor’s opinion, it was not,) that the whole, instead of one half, had been paid over to the said Charles Hopkins, then would the plaintiff be barred as to the whole.

*1782. Because the deposit of the money by the plaintiff, with the defendant, was made upon the defendant’s undertaking not to pay it over, until he had procured a proper assignment of the judgment to the plaintiff. The payment of the money, therefore, by the defendant, to a person neither authorized to assign the judgment, nor entitled to the money, was no breach of the contract, and of'.course the statute of limitations did not commence to run from that time.

3. Because the relation of the defendant to the plaintiff, was that- of an agent to his principaland the possession of an agent was not adverse until demand made; therefore the statute of limitations did not begin to run until then.

4. Because when the relation of the parties is of a fiduciary character, *notice*of the breach *must be*proved as *to*the plaintiff^ before the statute of limitations will be a bar.

5. Because the defendant contracted to pay over the money to the plaintiff on a contingency, namely, his failure to procure a proper assignment; and that, until he had informed the plaintiff, that he had failed to procure such an assignment, or it had come to his knowledge in some other way, no action would lie; .and therefore, the statute would not run until then.

6. Because this was an action to recover back the consideration money of a void assignment, which was treated as a subsisting assignment by the maker of it, the defendant, within four years before bringing the action, and therefore the statute will not run. . .

7. Because to make it a defence to an agent, that he has paid over money, it is necessary that the money should have been paid to the agent *expressly*for the use of the *person*to whom he has so paid it over.

8. Because the verdict was contrary to law, evidence, and the charge of his Honor, the presiding Judge.

*W. F. Hutson,:*for the motion.

1. Argued, that taking the view of the presiding Judge *to*be correct, the jury erred in thinking the whole amount paid over; for, taking Mr. Hopkins’ testimony, in connexion with the.fact that the receipt produced is for exactly one half, the inference *179on the mind- of a lawyer is, that the defendant retained one half for his fee. So it was not, in fact, paid over.

2. But, between principal and agent, in which relation the parties stood, the statute of limitations would not run until demand made. Co. Lit. 286; 2 Bail. 51; 1 Hill. Ch. 67 ; 1 Taunt. 572.

3. So, notice of payment over was necessary, before the statute would run. Godb. 160 ; 3 B *&*A. 288.

4. But, as payment to a person not authorized to receive the money, would not be a defence to the action, neither can it be called strictly a breach of the contract, for the contract is, “ I will not pay over the money until,” <fec. But what is the legal construction 1 I will not pay over *to the executors of Hopkins.*The payment to C. H. Hopkins, then, is no breach.

5. Again: it was an implied promise to pay over, on a contingency, namely, defendant’s failure to procure an assignment ; the statute would not, therefore, run, until the contingency, allowing a reasonable time to procure the assignment. 1 Wm. Black. 354; Godb. 437. Especially as the contingency suspended the cause of action. 2 Bail. 544.

6. But this may be treated as an action to recover the consideration money paid for a void assignment, treated by the assignor as a subsisting assignment within four years ; in such case, the statute of limitations will not run. 3 Moore Scott, 219 , 9 Bing. 748. The general rule is, the statute begins to run from the time when the party had a cause of action. The payment to Hopkins was 15 days after the promise. Supposing the plaintiff ignorant of the payment to Hopkins, could he have sustained an action commenced on the 26th February! If not, the statute would not run until he could sustain his action. There is no promise to return the plaintiff the money; therefore, until he demanded it, he had no right of action.

*Wm. E.*Martin, contra,

rested the defence on the following grounds:

1st. If any thing intended for a contract was entered into, it was *nudum pactum.*"The consideration in ass’t. must be such as the party promising has power, by law, to perform, or cause to be performed.” 1 Selwyn, *180p. 40. Mr. Rhett engaged to procure an assignment, but could not compel the parties, who were plaintiffs in the judgment, to execute an assignment. The case of an attorney engaging to procure satisfaction of judgment, (where it is said ass’t. will not lie, for after judgment the warrant of attorney ceases,) is analagous to the present. 1 Comyn. Dig. 326. The English Courts have also held ass’t. will not lie for failing to procure a bankrupt’s certificate, for the same reason. Again ; “ a mere courtesy will not support ass’t.Duller N. P. 145. “ Agreement to do any thing on one side, without compensation on the other, is void in law.” Comyn. on Con. 1, 9 ; Bl. Com. 445. A gratuity, intended as such at the time, cannot afterwards be made the foundation of a legal demand, as has been held in South Carolina also. To apply this, it will be seen, that if Mr. Rhett is to be considered Dr. Sams’ agent, no compensation appears to have been given to Mr. Rhett; and Dr. Sams stated to Mr. Edmund Rhett, 4 years after the transaction, the foundation of this suit, in alluding to defendant, “ Mine is not a legal claim, I rely on his honor.” If, therefore, the counsel for appellant are right, in considering Mr. Rhett the agent for Dr. Sams, it is *nu-dum pactum.*See also, the note in 1 Selwyn. N. P. 36.

2d. If Mr. Rhett was not the agent of Sams, he must have been the agent of Hopkins, and the executors of Hopkins ; in that case, having declared his principal, his agency being known, and being treated with as the agent of C. H. Hopkins, “ one of the heirs of Francis Hopkins, who, in some way, represented the executors of his father,” the principal *is liable, and not the agent. Caney vs. Webster,*1 Strange, 480 ; *Mad. vs. Hammond,*same, 505 ; *JBurrough vs. Skinner,*5 Burr. 26, 39 ; *Sadler vs.*-Evans, 4 Burr. 1985, (considered a leading case;) *Bulle vs. Harrison,*Cowper, 568 ; 2 Kent, 492 ; 1 Livermore on Agency, 245, 246, 247, 249; Paley on Agency, 289, 304, 306, 308, 309 ; *Executors of A.she vs. Livingston,*2 Bay, 85; sustained in *Waddell vs. Mordecai,*Riley Coll. 17.

3d. The statute of limitations is pleaded in both forms, “ *Non ass’t.*and *actio*nonand the action is barred, if there ever existed the right of bringing it. When money is paid by mistake, or upon a consideration which has *181happened to fail, the statute runs from the time the money is paid. 1 Esp. N. P. 157. (The money in this case was paid on 25th February, 1836, and suit begun in August, 1840.) In all cases of injury arising from carelessness, or negligence, the statute runs from the time of the act being done, from which the injury arose, and not from the injury, or the discovery of it. *Bree vs.*Horlbeck, Cowp. 654; *Howell vs.*Young, 12 Com. Law Rep. 107; *Battely vs.*Falkner, 5 Com. Law Rep. 288 ; *Short & McCarthy,*same, 403; *Troup, vs. Executors of Smith,*20 Johns. 33 ; *Mc-Dowall vs. Executors of Goodwyn,*2 Mil. Const. Rep. 44; *Motley & Montgomery,*2 Baily, 544; *Executors of Thomas vs. Executors of Ervin,*Cheves, 1, 22. The appellant’s counsel has argued that Mr. Rhelt stood towards Dr. Sams in a fiduciary relation, and that the statute will not run until some act is done by Mr. Rhett, to terminate the agency. This argument would well apply in the Court of Equity, particularly as the counsel treats the parties in the light of trustee and *cestui que trust,*when he contends that the statute runs only from the time of the discovery of the payment over. In the case of *Troup vs. Smith,*20 Johns. 33, above referred to, it was held, the statute would run from payment over, whether discovered or not. It was argued, that the statute would only run from demand made in 1840; but this cannot apply, because the demand was not necessary to constitute a cause of action, which is the case when the statute runs from demand. The payment over was a breach, and gave cause of action. In the case of *Smith & Bythexoood,*Rice 245, the Court held, that when a note was payable on demand, .the statute run from the first existence of the note; no demand, beyond the service of the writ, was necessary, and it was not even entitled to days of grace, though having no date. Again; this was a promise *indefinitely,*no time being fixed for its fulfilment; the party promising having it in his power to defeat the intention at will, (viz: paying over the money for a different purpose from that intended,) and under the authority of the case of *McDoxpall vs. Ex'or s of Good-wyn,*2 Milne, 441, the statute was a bar. There cannot be a doubt, that if the statute was not a complete bar on the 10th February, 1840, it must have been so on the 25th *182of the same month and year, (the four years from payment over having elapsed,) and the suit was not commenced until August, of the same year.

Curia, *per*

Evans, J.

The written contract, dated 9th February, stipulates, that on the payment of a certain portion of the judgment, the defendant, as attorney of Hopkins, should give a general and entire discharge of all demands, or as the said B. B. Sams shall elect, an assignment of debt to him. From this agreeement the plaintiff has certainly no cause of action against the defendant, for not procuring an assignment of the judgment. If any such right of action exists, it arises out of the verbal stipulation proved by Col. DeTreville, to have been made on the 10th February, the day after the written agreement was signed. That stipulation, as proved, was, “ that he (the defendant,) would not pay the money over, until he procured a proper assignment of the judgment, or an assignment from the proper parties.” We think with the presiding Judge, that this was a personal undertaking, and that it was founded on a sufficient consideration, to wit, the payment of money by Sams. A very slight matter, either of benefit on one side, or loss on the other, is a sufficient consideration to support a promise; so that the only question about which there is any difficulty, is, whether the plaintiff’s action, arising out of this breach of contract, is barred by the statute of limitations. There is no doubt of the correctness of the principle contended for by the plaintiff’s counsel, that as between principal- and agent, the statute of limitations does not, in general, run, because there is no right of action until demand. The difficulty of the case is, to determine the precise relative position of the parties. I do not perceive there is any foundation for the main argument of the plaintiff’s counsel, that, by the contract, Rhett was Sam’s agent to buy an assignment from the executors of Hopkins. The money was not paid on any such contract as this. The money was paid on the contract of the 9th February, to Rhett, as the agent of Hopkins, upon his stipulation not to pay it over until he procured an assignment of the judgment. The plaintiff’s complaint is not that the defendant still keeps the money, and, *183therefore, the plaintiff has a right to recover it back, as paid on a consideration that he has not performed, but that he has violated his promise, and paid over the money, without procuring the assignment, according to his promise. The general principle is, that the statute of limitations begins to run whenever a cause of action accrued to the plaintiff, or, in other words, whenever the plaintiff can sue the defendant for a breach of his contract. Now, there can be no doubt that when Rhett paid the money, in violation of his agreement, he was liable to action on his contract. It was broken, and the statute of limitations commenced to run from the day the plaintiff could have brought an action against him. But, it is supposed, no cause of action accrued to Sams, until he was informed of the breach of Rhett. I think it wholly immaterial, whether he knew it or not. If he did not, of which there is no evidence, except that it may be inferred from his letters, it was his misfortune, and he is not the first man who has lost his right of action by his own inattention to his business. In this particular, the case is like *Executors of Thomas vs. Er-vin.*If the defendant had fraudulently got possession of the plaintiff’s money, or had deceived him by misrepresentations as to its misapplication, that might, perhaps, have altered the case ; but nothing of this sort is supposed to exist in this case. The defendant is bound only by his promise. There is no pretence of any right to sue him on any other ground than a violation of his promise. More than four years elapsed after a cause of action accrued to the plaintiff, and we are of opinion, the plaintiff’s action is legally barred. The motion is dismissed.

We concur. John Belton O’Neall, D. L. Wardlaw.

Butler, J. I am inclined to the opinion, that the defendant should be regarded as a bailee, and did not hold the money adversely until demand, and, therefore, could not avail himself of the statute of limitations.

Richardson, J.

I dissent from the decision of the Court in this case. I think the defendant was bound to keep the money until he had obtained for Dr. Sams a legal assign*184ment of the judgment from the executors of Francis Hopkins, or a legal acquittance from them. That, therefore, the payment of the money over to Charles H. Hopkins, was merely voluntary and gratuitous ; and of course, until Dr. Sams had notice of such a transfer of the money to Charles H. Hopkins, or of a refusal to return it, or the defendant had procured the legal assignment of the judgment, he, the defendant, stood in the character of the agent, either to pay over the money to the executors, or to procure the proper assignment; and, therefore, the statute of limitations could not attach until after the correspondence of 1840.