Opinion
Spring Sessions, 1845.
Gray, for plaintiff.
Wales, for defendant.
THIS was an action of assumpsit on a promissory note, dated August 29th, 1837, payable thirty days after sight. The defence was the act of limitation, and set off of a book account, beginning in 1825, and ending in 1830; to which the plaintiff replied the act of limitation. The plaintiff proved the execution of the note and a presentment, about August 20th, 1843, for payment or a new note, with a view to prevent the running of the act.
Mr. Wales, for defendant, contended that this was not a lawful presentment, the demand being in the alternative; that such presentment avowedly for the purpose of saving the bar of the statute, implied a previous presentment at or about the date of the note, as the danger of such bar could only exist on such supposition; and if the jury believed there had been such previous demand, at so early a date, the note was now barred.
Mr. Gray, for plaintiff, replied that this note being payable thirty days after sight, the cause of action did not occur, and the statute could not begin to run until a demand; that there was no evidence of a presentment previous to August, 1843; and that the demand for payment, or a new note, was a lawful presentment: of which opinion was the court; and the matters of discount being clearly barred by the statute, the plaintiff had a verdict for the amount of the note with interest from the time of presentment. ( Chitty on Cont. 311; 2 Taunt. 323.)