Page:The American Cyclopædia (1879) Volume X.djvu/489

LIMITATION 483 of doubtful meaning, but an actual promise ; some of our courts however, it must be admit- ted, apply the rule, even now, with much lax- ity. So if there be an acknowledgment, writ- ten where that is required, or spoken else- where, it must be a distinct acknowledgment that the debt now exists and is due. It need not acknowledge or promise any pre- cise amount, for evidence may prove this; but it must be sufficiently precise and definite to show that this very debt was in contempla- tion when the promise or acknowledgment was made. Hence, it is now clear 'that an ac- knowledgment which negatives a promise, as " I owe that debt, but do not choose to pay it," does not revive the debt; and it is but an extension of this rule to say that an acknowl- edgment so guarded and defined or limited that it cannot be fairly regarded as intended to be a new promise, will not revive the debt. So if the promise or acknowledgment be condition- al, as, "when I am able," or "if I recover such a debt," it revives the debt only if the condi- tion be performed. If part payment is relied upon as reviving the debt, it must be shown, by direct or circumstantial evidence, that the pay- ment was made as a part of a larger debt, and of the debt in controversy ; for in the absence of all such evidence it will be presumed that the pay- ment was made as of the whole that was due. If a debtor owes his creditor several debts, some of which are outlawed (which is a com- mon phrase for barred by time) and some are not, and pays him a sum of money without in- dicating what debt it shall be applied to, the creditor may apply the payment to the out- lawed debts, but cannot, by such part pay- ment, revive the remainder. But if a debt consist of principal and interest, a payment on account of either will take the whole debt from the statute. Tenterden's act, which requires the new promise to be in writing, is now held, in England and in the United States, not to require the evidence of a part payment to be in writing. As a part payment operates as a new promise, it is clear that no part payment can revive a debt unless it be made not only on account of the debt, but by some one who had authority from the debtor to make it as a part payment, or to bind him by his promise. If the original promise were made by two jointly, it cannot be revived by either so as to bind the other, unless he has (as a partner has if the firm be in existence when the promise is made) a right to promise for himself and the other also. Formerly, the acknowledgment by one revived it as to all, because it removed the presumption of payment. But now that the statute is regarded as one of repose, the rule is as above stated. It is important to determine when the six years begin to run. The general answer is, from the day when the creditor could have commenced an action for the debt. Thus, if the original promise be on time, or a sale be on credit, or any debt contracted on definite credit, the six years do not begin when the debt begins, but when it is payable ; that is, when the time or the credit expires. So if a, surety pays for his principal, he may make his principal repay him ; and his action is not barred when six years elapse from the matu- rity of the debt which the surety paid, but from the time of his payment. If an action cannot be brought until after a demand, it is not barred (or outlawed) until six years after the demand is made. But a note on demand may be sued at once, and is always payable ; and the six years begin to run against it from its date. The six years begin to run as soon as the action accrues, although the damage or in- jurious consequences occur later ; as if one is injured by the fault of another (a railroad company for example), the action must be brought within six years from the time when the injury occurs, although its consequences, for which the action is in fact brought, were developed at a much later period. If money be payable by instalments, the statute begins to run as to each instalment from the day on which it becomes due; but if there be an agreement that when one is unpaid all shall become due, the statute begins at once to run as to all. The statutes of limitation always contain exceptions to meet cases of disability. In general, they are substantially the same as the exceptions in the original statute of James, which provides that if the plaintiff, when the cause of action accrues, be within the age of 21 years, a married woman, of unsound mind, in prison, or beyond the seas, he or she may bring his action at any time within six years after the disability is removed ; or, as it is commonly expressed, the statute does not begin to run until the disability is removed. In applying this rule, it is held that if the disability does not exist when the cause of action accrues, or if it exist then and is afterward removed, al- though but for a short time, so that the stat- ute once begins to run, the statute is not sus- pended or arrested by a subsequent disabil- ity. If several disabilities exist when the cause of action accrues, the statute does not begin to run until all are removed; but if there be one at that time, and afterward but before that one be removed there be other disabilities, the statute begins to run as soon as the first is removed, and is not affected by the subsequent ones. Thus, if one was 20 years old when a debt to him accrued, and before he was 21 went abroad and remained ten years, he could not bring his action on his return, because the statutory six years began as soon as his minority expired. So too, by a later English statute (4 Anne, ch. 16, s. 19), generally enacted here, it is provided that if the defendant be out of reach, as beyond the seas, when the action accrues, the six years do not begin against the plaintiff until the de- fendant returns; and in this country this is held to intend an open and public return, such as would afford opportunity to bring suit. In the United States, instead of the English phrase