statutes of the two Georges surely did not become a part of our common law, and never were in force in any of the states of the Union, at least not after the separation from the mother country.

Regarding the right of persons aggrieved, or of persons interested in a criminal cause, to employ and pay counsel to assist the duly-chosen law officer whose duty it is to institute and prosecute criminal actions, the cases in the courts of the various jurisdictions are not agreed; one class of decisions holding that this cannot be done over, the objections of the accused." the famous Knapp case," in Massachusetts,

(11)

In

Meister v. People, 31 Mich. 99. 1 Am. Cr. Rep. 91. In this case the court say, in the course of the opinion, by Mr. Justice Campbell: "The policy of allowing qui tam actions has not been encouraged in this state, and criminal penalties have been devoted to public purposes. Neither is the felonious character of an injury held to prevent an action before, any more than after, criminal prosecution. And one of the reasons given for this is the establishment of public prosecutors. Hyatt v. Adams, 16 Mich. 180. It is impossible to account for the change in our statutes requiring the exclusive control of criminal procedure to be in the hands of public officers who are forbidden to receive pay, or in any way become enlisted in the interests of private parties, unless we assume the law to have been designed to secure impartiality from all persons connected with criminal trials. The law never has prevented, and does not now prevent, private complaints before magistrates, who have a discretion in regard to calling in the prosecuting attorney. * * But when a charge is prevented on which the respondent is to be tried at the circuit * * *, the law requires the public prosecutor to assume and retain exclusive charge of the cause, until the case is ended by acquittal or conviction. The chief dangers which the statute intends to guard against must be those attendant on the trial, inasmuch as the preliminary proceedings usually determine the nature and extent of the accusation, and those proceedings may be under the charge of private parties. And we must conclude that the legislature did not consider it proper to allow the course of the prosecuting officer, during the trial, to be exposed to the influence

of the interests or passions of private prosecutors. His (the public prosecutor's) position is one involving a duty of impartiality not altogether unlike that of the judge himself." In Biemel v. State, 71 Wis. 444, 37 N. W. 244, it was held that an attorney employed by private parties ought not to assist the district attorney.

(12) Com. v. Knapp, 27 Mass. (lo Pick.) 477, 20 Am. Dec. 534.

Daniel Webster appeared and aided, without objection on the part of the defendant, in the prosecution of the principal felon, and was expected to aid in the prosecution. of the accessories, and reliance was placed by the prosecuting law officer on such aid from Mr. Webster. It being made to appear to the court that Mr. Webster acted in the matter without pecuniary reward, and without any interest beyond that of "a disinterested regard for the public good," the court upheld his connection with the cases. A similar ruling was made by the Supreme Judicial Court of Massachusetts in a subsequent case,13 the court saying that "it could be allowed for stringent reasons, only," referring again to the absence of any pecuniary reward or compensation from any private individual; and remarking further that "such counsel is not, under ordinary circumstances, to be permitted, yet, when sanctioned by the court, under the limitations suggested, it would not furnish ground for setting aside the verdict" of guilty. But in a later case, where the court, in the absence of the district attorney, appointed counsel to act in his place, and the attorney thus appointed had been retained by private parties in a civil litigation of the same matter, a conviction was set aside because of such appointment. These seem, however, to be extreme views, the great weight of authority being to the effect that counsel may be appointed to assist the district attorney, on leave of or by action of the court,15 and

14

(13) Com. V. Williams, 56 Mass. (2 Cush.) 582.

(14) Com. v. Gibbs, 70 Mass. (4 Gray) 146. (15) Shelton v. State, 1 Stew. & P. (Ala.) 208; People v. Blackwell, 27 Cal. 65; People v. Turcott, 65 Cal. 126, 3 Pac. 461; Yolo County v. Joyce (Fla.), 50 So. 580; People v. Biles, 2 Idaho 114, 6 Pac. 120. Beauchamp v. State, 6 Blackf. (Ind.) 299; State v. Shinner, 76 Iowa 147, 40 N. W. 144; State v. Cobley, 128 Iowa 141, 103 N. W. 99; State v. Wilson, 21 Kan. 189, 36 Am. Rep. 257; State v. Wells, 54 Kan. 161, 37 Pac. 1005; State v. Petrich, 122 La. 127, 47 So. 438; State v. Bartlett, 55 Me. 200; Com. v. Scott. 123 Mass. 222, 25 Am. Rep. 81; Ulrich v. People, 39 Mich. 245; People v. Perriman. 72 Mich. 184, 40 N. W. 425; People v. Wood, 99 Mich. 620, 58 N. W.

W.

638; State; v. Orrick, 106 Mo. 111, 17 S. 176, 329; State v. Whitworth, 26 Mont. 107, 66 Pac. 748; State v. Tighe, 27 Mont. 327, 71 Pac. 3; State v. O'Brien, 35 Mont. 482, 90 Pac. 514; Polen v. State, 14 Neb. 540, 14 N. W. 898; Bush v. State, 62 Neb. 128, 86 N. W. 1062; Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; State v. Johnson, 24 S. D. 590, 124 S. W. 847; Bunkhard v. State, 18 Tex. App. 599; Bowner v. State, 55 Tex. Cr. Rep. 416, 116 S. W. 798; Hopper v. Com., 6 Gratt. (Va.) 684; Rounds v. State, 57 Wis. 45, 14 N. W. 865.

(16) Thalheim v. State, 38 Fla 169, 20 So. 938; Keyes v. State, 122 Ind. 527, 23 N. E. 1097; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148, 3 Am. Cr. Rep. 1; State v. Montgomery, 65 Iowa 483, 22 N. W. 639; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; Bennyfield v. Com., 13 Ky. L. Rep. 466, 17 S. W. 271; People v. Perriam, 72 Mich, 184, 40 N. W. 425; State v. Rue, 72 Minn. 296, 75 N. W. 325; Gardner v. State, 55 N. L. L. 17, 26 Atl. 30; State v. Kent, 4 N. 'D. 577, 27 L R. A. 686, 62 N. W. 621; Hite v. State, 17 Tenn. (9 Yerg.) 198; People v. Tidwell, 4 Utah 506, 12 Pac. 61; United States v. Morris, 1 Paine 209, Fed. Cas. No. 15,816.

(17) See Hopper v. Com., 6 Gratt. (Va.) 684. But compare Com. V. Williams, 56 Mass. (2 Cush.) 582.

(18) Meister v. People, 31 Mich. 99, 1 Am. Cr. Rep. 91.

(19) English v. Chapman, 51 Mich. 524, 16 N. W. 866. Although it is held that the district

It is submitted, in all candor, that what the court is without authority to do in the premises a private party cannot do. If the court cannot appoint an attorney to usurp the functions and do the duty of the district attorney, a private party, in and of himself, certainly cannot employ and pay a private attorney to institute and prosecute a criminal cause.

In the section above referred to, the author says: "Thus, it has been said that a private person may employ and pay an attorney to act independently of the prosecuting attorney in suppressing a liquor nuisance," citing an Iowa case holding such doctrine on the point squarely raised and by citation of the case, without comment or limitation, the author may be assumed to approve that broad proposition; for it is to be noted, Mr. Kerr is never reserved in expressing his opinion as to the

23

attorney, or the attorney-general, may delegate to another the work to be done in connection with the case, under his direction, e. g., to represent him on behalf of the commonwealth in appealing the case to the final court.-McQuestion v. Attorney-General, 187 Mass. 185, 72 N. E 244.

(20) Com. v. Knapp, 27 Mass. (10 Pick.) 477. 20 Am. Dec. 543; Com. v. Williams, 56 Mass. (2 Cush.) 582; Meister v. People. 31 Mich. 99. 1 Am. Cr. Rep. 91; State v. Tufts, 56 N. H. 137; Hite v. State, 17 Tenn. (9 Yerg.) 198; United States v. Morris, 1 Paine 209, Fed. Cas. No. 15,816.

The court, with the consent of the district attorney, may appoint counsel to assist in a cause.-Edwards v. State, 47 Miss. 581.

validity of a statute, or the soundness of a decision.25

In the Iowa case cited, the action was a prosecution under the Iowa statute to punish as for contempt the disobedience of an injunction granted by the court abating a liquor nuisance. The injunction proceedings were commenced, and the abatement order secured, by attorneys employed and paid by private parties, without the intervention or assistance of the district attorney; and the proceeding for punishment as for contempt was in the same manner instituted by such privately-employed attorneys, without the intervention or assistance of the duly selected law officers commissioned with the duty of enforcing the laws. The statute, it seems to me, was a controlling factor in that case, and should not be lost sight of; the provision being that "any citizen of the county where a liquor nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same;" and further providing that "any person violating any injunction granted in such proceedings shall be punished as for contempt," etc. It was contended by the defendant that the public having provided a county attorney, whose duty it is to see that the laws were honestly enforced, unofficial attorneys employed and paid by private parties could not prosecute: referring to the holdings in the Wisconsin and other cases cited above, in which cases, upon statutory enactments and grounds of public policy, it was held that attorneys employed by private parties cannot be permitted to assist in the trial of a criminal cause. The court, in passing upon this contention,

(24) See 1 Kerr's Wharton on Criminal Procedure, sec. 653.

(25) See criticism of Bailey v. Wiggins, 5 Harr. (Del.) 465, 60 Am. Dec. 650, in 1 Kerr's Wharton on Criminal Procedure, p. 55; also characterization of case of People v. Schmitz, 7 Cal. App. 369, 15 L. R. A. (N. S.) 717, 94 Pac. 419 (Id., p. 808), and the criticism of holding of the court in ex parte Kearny, 54 Cal. 212, in footnote 1, to sec. 1943, in vol. 3, Id.

(26) Iowa Code, sec. 1543.

says: "Upon this particular feature of the case we need only say that, under our law, it has been held that the right to have assistant counsel in criminal cases is a matter that may safely be left to the discretion of the court and of the attorney for the state. The point under consideration is, however, different. This was an appearance without reference to the county attorney; but it was, by the rulings upon the objections, with the express authority of the court. The attorneys were not there, however, to assist the regular attorney for the state, but to prosecute in behalf of the public. We think the matter may be disposed of without reference to the express authority of the court or county attorney." The court then says that "Where a citizen engages in the prosecution of an injunction proceeding under the statute mentioned,20 he has the right to counsel to aid him, not only to secure the order of abatement, but also in a proceeding for contempt to punish for disobeying the order. Any other holding would render the law, in very many cases, practically useless."

This was an action for debt brought by defendant in error December 9, 1916, against Mrs. Idah Sam, executrix of the estate of Joe M. Sam, deceased, the suit being based upon the following instrument: "November 6, 1899 Received of Peter Ludtke $300.00 for safekeeping. Joe M. Sam." Plaintiff alleged that he "left said $300 with Joe M. Sam for safekeeping, with the understanding that he was to have it any time he asked for it, and with the understanding that Joe M. Sam was to pay six per cent for the use thereof; that plaintiff did not need said money before the death of said Joe M. Sam, and therefore made no demand therefor; that the estate of said Joe M. Sam, deceased, is now indebted to said Peter Ludtke in the sum of $300 together with six per cent interest from date. The prayer was for a judgment for said debt, with interests and costs and general relief. An answer was filed by Mrs. Idah Sam as independent executrix of the estate of Joe M. Sam, deceased, consisting of a general demurrer, a general denial, a plea of payment, of estoppel upon the ground of gross laches and the statute of limitation of four years. Upon hearing before the court without a jury, judgment was rendered on February 3, 1917, in favor of plaintiff, Peter Ludtke, against "Mrs. Idah Sam" for the sum of $300, with the interest from the date of the judgment at the rate of 6 per cent and all costs of court.

The allegations of plaintiff's petition and the undisputed evidence show that plaintiff's cause of action was barred by the statute of limitation of four years, and, defendant having properly pleaded the statute in bar of plaintiff's right to recover, judgment should have been in her favor. As before shown, the petition alleges that when the $300 was turned over to Sam by plaintiff and the instrument sued on executed, Sam agreed to pay plaintiff interest on the money at the

rate of 6 per cent per annum. Plaintiff testified that this was the agreement, and there was no testimony to the contrary. Joe M. Sam died on February 14, 1915, and plaintiff in error is the independent executrix of his will. The trial judge found the facts in accordance with the undisputed evidence, but held that because no demand was made by Ludtke for the payment of the money, the statute of limitation did not begin to run prior to the death of Sam. It is well settled by the authorities that an obligation or promise to pay money on demand is payable immediately, and no demand is necessary to start the running of the statute of limitation. In the case of Cook v. Cook, 19 Tex. 436, which was a suit against an administrator to recover money loaned by the plaintiff to the decedent to be paid back on demand, the administrator of the decedent testified that he had heard the decedent say that he owed the money, and that the agreement was that it should be paid to the plaintiff whenever he should demand it; that he, the administrator, rejected the account because he believed it was barred by limitation. The trial court ruled that the statute did not commence to run until demand made for the money loaned. There was a verdict and judgment for the plaintiff against the administrator. The Supreme Court, speaking through Justice Hemphill, said:

"The only question is, whether there was error in the proposition that the statute did not commence to run against the claim, until there was demand for the restoration of the money, and it appears very clear, upon the authorities, that this was erroneous; that an account or note payable on demand is payable immediately; that there need be no special demand, and that the statute of limitations commences to run from the date of the note or account (citing cases). A receipt for a sum of money for which the person receiving it undertook to return it with interest 'when called on' so to do created a cause of action from its date, and against it the statute runs from that time" (citing Berry v. Griffith, 1 Har. & G. 440).

Quoting further:

"The agreement in this case, as it appears from the evidence, was that the money should be paid the plaintiff when he demanded it. In other words, it was a loan of money payable on request, and the debt which constitutes the cause of action arose instantly on the loan; consequently the statute commenced to run immediately, and the demand, as alleged, and even as proven, was clearly excluded by the bar of the statute."

In the case of Henry v. Roe, 83 Tex. 446, 18 S. W. 806, the suit was upon a demand

note, and in holding that limitation began to run from the date of the note the court said:

"No demand was necessary before the institution of suit, nor was it necessary to allege demand. The note, being payable on demand, was actionable at once, and the statute of limitations began to run from its date; in other words, the note was due and payable immediately, without demand, and without averment of the fact" (citing a number of cases).

In Swift v. Trotti, 52 Tex. 498, which was a suit on account, for money loaned, payable on demand the court held that no time elapsed before the running of the statute of limitation except such time as the statute was suspended by law.

Other cases in point are Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Pollard v. Allen, 171 S. W. 538.

It is stated in Cyc. vol. 7, pp. 847, 848 that while some courts hold that a demand i necessary to start the running of the statut of limitation against a demand obligation, or at least that the payee must have a reasonable time to make demand before the statut becomes operative, most of the courts have held that paper payable on demand is due immediately, and the statute of limitation begins to run from the date of the paper.

We think it clear that upon the allegations of the petition and the undisputed evidence no such trust relation was shown as would prevent the running of the statute of limitation. Tinnen v. Mebane, 10 Tex. 246, 60 Am Dec. 205; Pollard v. Allen, 171 S. W. 530; Richardson v. Whitaker (Ky.) 45 S. W. 774. For obvious reasons, the general rule that limitation runs against a demand obligation from its date does not apply to bank deposits

In 3 Ruling Case Law, 375, the author notes the "distinction between doing a banking business and performance of isolated acts of which the business consists." The distinction is more fully set out on page 569:

"The statement frequently made that the relation between depositor and banker is merely that of debtor and creditor does not mean that a bank, like a common debtor, must loo up its creditor and pay him whenever and wherever found. To the contrary, it pays only over its own counter. The deposit not being due till demand is made, it is the demand and refusal to pay that sets the statute running."

There is the same distinction between banks and individuals as to certificates of deposit. 3 Ruling Case Law, 582.

The facts in this case being undisputed, and the law applicable thereto requiring a judg

ment in favor of plaintiff in error, the judg ment of the court below is reversed, and judgment here rendered in favor of plaintiff in

error.

Reversed and rendered.

NOTE.-Demand When Necessary to Start Limitations in Bank Deposit Cases.

General Doctrine.-In cases of bailment the rule as to when statute begins to run in favor of a bailee depends, primarily, on whether he is such tortiously or upon contract. In the former cases no demand being necessary and the original possession being a conversion, it would seem to be, that the statute begins to run immediately, or, at least, as soon as owner knows of, the conversion. Badger v. Hatch, 1 Me. 565; Ganley v. Troy City Nat. Bk., 98 N. Y. 494; Grant v. King, 14 Vt. 367, et passim. In case of a borrower the like rule prevails. Hall v. Letts, 21 Iowa 596; Cook v. Cook, 19 Tex. 434. Thus a note payable on demand. Little v. Blemt, 9 Pick. 488; Almshouse Farm v. Smith, 52 Conn. 434; Bartlett v. Rogers, 3 Sawy. 62. And it has been held that where a demand is necessary to start the running of the statute, this contemplates this ought to be made in a reasonable time, upon expiration of which time limitation begins. Railroad Co. v. Byers, 32 Pa. 22; Sandford v. Tuttle, 4 Vt. 82. And where it is necessary to perfect a claim that the owner thereof should take certain steps in its presentation, these steps must be taken within the time the ordinary statute of limitations would apply to the claim itself, as for example present same to a board for approval or rejection. Baker v. Johnson County, 33 Iowa 155; Thrall v. Mead, 40 Vt. 540; Codman v. Rogers, 10 Pick. (Mass.) 112; Palmer v. Palmer, 36 Mich. 488; Jameson v. Jameson, 72 Mo. 60. If another than bailor demands property from bailee, statute does not begin to run immediately in his favor, but only after he has been given reasonable opportunity to ascertain its true ownership. Carroll v. Mix, 51 Barb. (N. Y.) 212; Alexander v. Southey, 5 Barn, & Ald. 247; State v. Stevenson, 46 N. J. L. 326.

Deposits with Individuals.-The time within which suit must be brought is governed generally by particular contracts. Thus in Campbell v. Whoriskey, 170 Mass. 63, 48 N. E. 1070, there was a deposit of money by one individual with another, and it appeared, that it was the intention of the parties that it was to be held for an indefinite time in the future as much for the safety and convenience of depositor as for the pecuniary benefit of either, the depositary to act as a kind of savings bank for depositor, and it was held, that the statute of limitations did not begin to run from the date of deposit. The court thought that an element of trust entered into this transaction and it was contemplated for the money to remain as deposited for an indefinite time, and, therefore, plaintiff was not bound to make her demand within the period of the statute of limitations. The general rule, however, is different. Kraft v. Thomas, 123 Ind. 513, 24 N. E. 346, 18 Am. St. Rep. 345.

Deposits in Bank.-In Wood on Limitation of Actions, 3rd Ed., § 17, it is said: "It appears to