Girard Bank v. Bank of Penn Township
| Citation | 39 Pa. 92 |
| Parties | The Girard Bank <I>versus</I> The Bank of Penn Township. |
| Decision Date | 06 May 1861 |
| Court | United States State Supreme Court of Pennsylvania |
George L. Crawford and B. H. Brewster, for plaintiffs in error. —The defence in this case — lapse of time in making demand and bringing suit on the plaintiffs' claim — is strictly technical. It has not the meritorious foundation of the Statute of Limitations and analogous defences arising from lapse of time, viz., a presumed loss of evidence of a meritorious defence — for none is pretended here. And the enforcement of the plaintiffs' claim vitalizes for the defendants a security for their repayment by the party to whom they improperly paid the claim on that security, which security is worthless to rectify the wrong, except upon an enforcement of the plaintiffs' claim.
Has the lapse of time in making demand and bringing suit barred the plaintiffs' claim?
I. A subsisting continuing trust is not barred by lapse of time: Story on Equity, vol. 2, § 1520, a; Kane v. Bloodgood, 7 John. Ch. 90; Cholmondeley v. Clinton, 2 Merivale 93; Johnston v. Humphreys, 14 S. & R. 394; App v. Driesbach, 2 Rawle 287; Lyon v. Marclay, 1 Watts 271; Finney v. Cochran, 1 W. & S. 112; Zacharias v. Zacharias, 11 Harris 452; and Heckert's Appeal, 12 Harris 482.
It is the character of the trust as a continuing and subsisting one, and not the forum, or form of the proceeding, viz.: in a court of law or equity, that tests the rule: Thompson v. McGaw, 2 Watts 163; Heckert's Appeal, 12 Harris 486.
Dividends of stock corporations, until demand and refusal, are such trusts: Kane v. Bloodgood, 7 John. Ch. 90; Philadelphia and Wilmington Railroad Co. v. Cowell, 4 Casey 329, 339. A deposit of money for a special purpose was recognised as such a trust in Johnston v. Humphreys, 14 S. & R. 394; affirmed in Zacharias v. Zacharias, 11 Harris 452; and a bank deposit, until demand and refusal, is such a trust: Fogarties v. The State Bank, Am. L. Reg., May 1860, p. 393. If a check be accepted, by marking good or otherwise, by the bank, it is indisputably an assignment of the fund: Gibson v. Cooke, 20 Pick. 15; Brown's Case, 2 Story 502.
In New York, where certification is in more common use, and its legal and commercial character more accurately defined, the relation between a bank and holder of a certified check was decided in Willets v. The Phœnix Bank, 2 Duer 121, which was a suit by the holder of a certified check against a bank, who had subsequently repaid the deposit to the original depositor, and defended on the ground of laches of the holder in demanding payment. The court denied the validity of such defence. This was affirmed in a similar case, Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 4 Duer 219.
The Act of March 6th 1847, §§ 1, 2, 3, 4, 5, Brightly's Purd., pp. 87, 88, requiring banks, &c., to publish any dividends, profits, deposits, or balances in their hands, unclaimed for three years, which, if unclaimed for three years longer, are to escheat to the Commonwealth, subject to the owner's right of reclamation from the state treasurer at any time afterwards, is confirmatory of the plaintiffs' right against the Statute of Limitations; and banks can be relieved from responsibility only by complying with its provisions.
The payment by the defendants of the check to the drawer on the duplicate check and bond under the circumstances and representations iu the bond, within six years of demand and suit, were an acknowledgment that the relation between the defendants and holder of the certified check then existed. Such acknowledgments are distinguishable from acknowledgments of indebtedness to avoid the Statute of Limitations: Johnston v. Humphreys, 14 S. & R. 394; and Zacharias v. Zacharias, 11 Harris 452; and need not be made to the plaintiff or his agent, being admissions as evidence of a then subsisting fact, and not foundations for an implied promise: Clark v. Hougham, 2 B. & C. 154; Mountstephen v. Brooke, 3 B. & A. 141; Halliday v. Ward, 3 Camp. 32; Peters v. Brown, 4 Esp. 46.
II. But, independently of the doctrine of trusts, and speaking the language of a law forum which ignores them, and, pending them, recognises no right of action whereon its defence of the statute could attach, the Statute of Limitations does not begin to run on engagements for the payment of money on actual demand until demand: Picquet v. Curtis, 1 Sumner 478; Wright v. Hamilton, 2 Bailey 51; Winman v. The Mohawk Ins. Co., 13 Wend. 267; Philadelphia and Wilmington Railroad Co. v. Cowell, 4 Casey 329, 339. And bank deposits are of that character: Union Bank v. Planters' Bank, 9 Gill & Johnson 439, 461; Johnson v. Farmers' Bank, 1 Harring. 117, 119. And bank notes, by Act of March 22d 1817, § 1, Brightly's Purd., p. 76, § 45. Independently of that act, the Statute of Limitations does not run against a bank note: Story on Prom. Notes, § 501.
A certified check is a bank note intended to circulate as money, and laches in making demand is no more imputable in the one case than in the other: Willets v. Phœnix Bank, 2 Duer 132, affirmed 4 Duer 219. Certified checks are by bankers in England used and deposited as bank bills: 4 Duer 219. In New York, certified checks form a considerable part of bank circulation, and are in more general use as a commercial equivalent with bank bills in bank currency.
A certified check, as a bank note or deposit, is not due or payable, nor does the statute begin to run on it, until demand. No interest is payable on it until demand; interest is payable as soon as the debt is due, and the statute does not begin to run until the debt is due.
The court below, treating the plaintiffs' claim as not barred by the Statute of Limitations, have considered the delay in making the demand as an answer to the foregoing, on the principle of Codman v. Rogers, 10 Pick. 112, and Morrison's Administrator v. Mullin, 10 Casey 12.
3. The ordinary limitations at common law are not absolute, but rebuttable presumptions.
J. P. O'Neill and Thorn, for defendants in error.—The principal, and perhaps the only question in the case, is whether, under the circumstances, the Statute of Limitations was a bar to the action. We aver that it was.
Two grounds are urged by the plaintiffs in error, in support of their case.
1st. That the deposit by Adam Dietrich created a trust between him and the bank, and that the marking of the check "good" continued such trust to whomsoever should be the holder of it.
To this point it is submitted, that whatever may be the relation of one who deposits his money and the bank with which he deposits it, such relation is not continued, and does not exist between the bank and those persons who receive checks on it from the depositor. In order to prevent the running of the statute upon the ground of a trust existing between the parties litigant, it must appear, 1st. That it be a direct trust. 2d. That it be cognisable only in a court of equity. 3d. That it arise between the trustee and cestui que trust: Kane v. Bloodgood, 7 John. Ch. 90; App v. Driesbach, 2 Rawle 302; 20 Johns. 585; Lyon v. Marclay, 1 Watts 275; Finney v. Cochran, 1 W. & S. 118.
2d. That the bank, by taking security from Adam Dietrich in 1854, acknowledged its liability upon the check to the plaintiffs, and thereby prevented the running of the statute.
To this point of the plaintiffs in error, it is submitted, that there was no acknowledgment sufficient to prevent the running of the statute: Burr v. Burr, 2 Casey 285. The defendants made no promise to pay the amount of the check to the plaintiffs nor to any one as their agent. If A. gives a note to B. which is lost or mislaid, he may recover the amount of it in an action, on giving an indemnity, but it has never been supposed that the taking of such indemnity would operate to prevent the running of the statute against any one who would be the holder of it.
If the check was lost, the plaintiffs could have sustained an action against the defendants on giving an indemnity at any time within six years, and there would seem to be no good reason, why a party having a right of action should be permitted to lie by for seven years, and then to recover upon an instrument, which notwithstanding its loss could have been recovered on before the statute had barred his remedy.
The Statute of Limitations in this case, both on principle and authority, was a bar to the claim. The plaintiffs seek a recovery on a check marked "good" by the defendants. A check is an inland bill of exchange, and the marking it "good" by the defendants an acceptance. Upon this acceptance a right of action accrued immediately to the plaintiffs, or a demand was necessary to perfect it. In either case the Statute of Limitations is a bar In the first, because no suit has been commenced within six years; in the second, because the demand...
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