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.he Statutes must be brought. These periods vary from twenty years to one. Generally, they are longer for real actions, or for actions on judgments or on contracts under seal, and shorter for simple contracts of various kinds. An abstract of these statutory provisions in all the States is given at the close of this chapter.

All actions of account, and all which can be brought for indebtedness or damages, and all actions of debt grounded upon any lending, or contract without seal, and all actions for arrearages of rent, must be commenced and sued within the period of limitation fixed for bringing such actions by the statute law of the State in which the action is to be brought.

In some States, a statute provides, in substance, that, if a debt or promise be once barred by the Statute of Limitations, no acknowledgment of the debt or new promise shall renew the debt, and take away the effect of the statute, unless the new promise is in writing, and is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or interest of the old debt to have the same effect as a new promise. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the other. Such statutes have been passed in Maine, Massachusetts, Vermont, New York, Indiana, Michigan, Arkansas, and Cali fornia, and in most of the other States.

SECTION II.

CONSTRUCTION OF THE STATUTE.

FOR the law of limitation there is a twofold foundation: in the first place, the actual probability that a debt which has no been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inexpediency and injustice of permitting a stale and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence.

Before inquiring into the rules of law which now apply to the case of an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in force. This is the presumption of payment after twenty years, which is applicable to all debts; not only the simple contracts to which the Statutes of Limitation refer, that is, contracts which are merely oral, or which if written have no seal, but to specialties, or contracts or debts under seal or by judgment of Of these it will not be necessary to speak here, excepting to remark, that in a few of our States the Statute of Limitation excepts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator; such a note in those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by banks, are everywhere excepted from the operation of the statute.

court.

SECTION III.

THE NEW PROMISE.

WHAT is the new promise which suffices to take a case out of the statute? A mere acknowledgment, which does not contain, by any reasonable implication or construction, a new promise, is not sufficient, and still less so if it expressly excludes a new promise. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff, "I know we are owing you;" "I am getting old, and I wish to have the business settled:" it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defendant, on being asked to pay the note, said "he guessed the note was outlawed, but that would make no difference, he was willing to pay his honest debts, always." As he did not state in direct terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment.

The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts, generally, does not thereby make a new promise as to any one of them.

If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay "when I am able," the promisee must prove not only the promise, but that the promisor is able to pay the debt.

As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to interrogatories which could not be avoided, should never have the effect of a new promise.

SECTION IV.

PART-PAYMENT.

A PART-PAYMENT of a debt is such a recognition of it as implies a new promise, even if it was made in goods or chattels, if they were offered as payment, and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it was barred by limitation, which was a good defence, the plaintiff proved in reply that defendant had given him within the limitation a gallon of gin as part-payment for his debt, and it was held that this took the case out of the Statute of Limitations, and the plaintiff recovered. But a pay ment has this effect only when the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be construed as ca rying with it an acknowledgment that more was due and wouk be paid.

If a debtor owes several debts, and pays a sum of money,

he has the right of appropriating that money to one debt or another as he pleases. If he pays it without indicating his own appropriation, the general rule is, that the creditor who receives the money may appropriate it as he will. There is, however, this exception. If there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the payment to a debt that is barred, for the purpose of taking it out of the statute by such partpayment.

SECTION V.

THE STATUTORY EXCEPTIONS.

As persons may have a right of action without being able to begin the action within the period required by the statutes, because they are disabled by infancy, or by absence from the State, or by unsoundness of mind, or imprisonment, or in some States by being a married woman, it is generally provided in the statutes that the limitations there prescribed do not apply to persons so disabled. The more common of these disabilities

and the most universal in our State laws, are infancy and absence from the State. But these disabilities must exist when the cause of action arises to prevent the statutes of limitation from applying. And after the disabilities are removed, the persons who have been disabled may bring their action within certain periods of time. These periods are stated in the abstract of the Statutes of Limitation at the close of this chapter.

The effect of these is, that the disability must exist when the debt accrued; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule, that, if the limitation begins to run, it goes on without any interruption or suspension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be commenced for the debt. Or if the disability exists when the debt accrues, and some months afterwards ceases

so that the limitation begins to run when it ceases, and afterwards the disability comes again, it does not interrupt the limitation.

If, when a debt is due, the debtor is out of the State, the limitation does not begin to run. If afterwards he returns to the State, it then begins to run, and, having begun, it continues to run, in most of the States, although he goes out of the State again, and returns no more.

In this country, a rational construction has been given to the disability of being out of the State, and its removal; and it is not understood to be terminated merely by a return of the debtor for a few days, if during those days he was not within reach. If, however, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this removal of the disability brings the statute into operation, although the return was for a short time only.

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It is sometimes a question from what point of time the limitation must be counted. And the general rule is, that it begins when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the limitation does not begin until the time has expired, including the additional three days' grace; if a bill of exchange be given, payable at sight, then the limitation begins after presentment and demand; but if a note be payable on demand, or money is payable on demand, then the limitation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limitation begins as soon as the demand is made. If money be payable on the happening of any event, then the limitation begins after that event has happened. If several successive credits are given, as if a note is given which is to be renewed; or if a credit is given, and then a note is to be given; or if the credit is longer or shorter, at the purchaser's option, as if it be agreed that a note shall be given at two or four

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