Ordinarily the statute of limitations is held merely to bar the remedy, but not to extinguish the right, and therefore the right son v. Martz, 8 Watts (Pa.) 374, 34 Am. Dec. 474. See "Equity," Dec. Dig. (Key-No.) § 67; Cent. Dig. §§ 191-196.
86 Williams v. Mitchell, 112 Mo. 300, 20 S. W. 647; Knight v. McKinney, 84 Me. 107, 24 Atl. 744; Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, 23 Am. Dec. 748; Atkinson v. Dance, 9 Yerg. (Tenn.) 424, 30 Am. Dec. 422; Stover v. Duren, 3 Strob. (S. C.) 448, 51 Am. Dec. 634; Walker v. Emerson, 20 Tex. 706, 73 Am. Dec. 207. See "Payment," Dec. Dig. (Key-No.) § 66; Cent. Dig. §§ 176-188.
87 Anson, Cont (4th Ed.) 316; Llanelly Ry. & Dock Co. v. Railway Co., L. R. 7 H. L. 550, 567. See "Payment," Dec. Dig. (Key-No.) § 66; Cent. Dig. §§ 176-188.
of action, after it has become barred, may be revived.88 Where a simple contract, for instance, has resulted in a money debt, the right of action may be revived by subsequent acknowledgment or promise. In some jurisdictions there are statutory provisions requiring that the acknowledgment or promise, to be effectual, must be in writing, signed by the party to be charged or his duly-authorized agent. The sort of acknowledgment or promise which has been held to be requisite in order that a simple contract debt may be revived so as to start the running of the statute anew has been thus described: "There must be one of these three things to take the case out of the statute: Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied; or, secondly, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed." 89
A debt barred by the statute may also be revived by a part payment. A payment on account of the principal, or a payment of interest on the debt, will take the contract out of the statute. It is provided by most, if not all, of the statutes requiring a new promise or acknowledgment to be in writing, and signed by the promisor or his agent, that nothing therein contained shall take away or lessen the effect of such part payments. The payment, to have the effect of reviving the debt, must be made with reference to the original debt, and in such a manner as to amount to an acknowledgment of it.90 Where a payment is made by a debtor kower v. Steel, 23 Or. 106, 31 Pac. 253. See "Limitation of Actions" Dec. Dig. (Key-No.) § 157; Cent. Dig. §§ 631-636.
88 Campell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. Contra, Pierce v. Seymour, 52 Wis. 272, 9 N. W. 71, 38 Am. Rep. 737. See "Limitation of Actions:' Dec. Dig. (Key-No.) § 139; Cent. Dig. §§ 57//, 593, 621.
89 In re River Steamer Co., 6 Ch. App. 822, 828. Some courts have held that a mere acknowledgment of the debt as existing is sufficient to remove the bar, even though there be an express declaration of intention not to pay it; but most courts hold that this is not enough (regarding the statute as one of repose rather than one of presumption), but that the acknowledgment must be of such a nature as to show that the debtor intended to promise to pay. WARREN v. CLEVELAND, I11 Tenn. 174. 70 S. W. 910, 102 Am. St. Rep. 749, Throckmorton Cas. Contracts, 422. Riddel v. Brizzolara, 64 CaL 354, 30 Pac. 609; Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. 014; Heany v. Schwartz, 155 Pa. 154, 25 Atl. 1078; Perry v. Chesley, 77 Me. 393; Hussey v. Kirkman, 95 N. C. 03. As to conditional promises, see Boynton v. Moul-ton, 159 Mass. 248, 34 N. E. 361. See "Limitation of Actions," Dec. Dig. (Key-Wo.) § V,5; Cent. Dig. §§ 584-592.
90 Waters v. Tompkins, 2 Cromp., M. & R. 722; Miner v. Lorman, 56 Mich. 212, 22 N. W. 265; State v. Corlies, 47 N. J. Law, 108; Sears v. Hicklin, 3 Colo. App. 331, 33, Pac. 137; Benton v. Holland, 58 Vt 533, 3 Atl. 322; Bas to his creditor without indicating upon which of several debts it is to be applied, and it is applied by the creditor to a debt not barred by the statute of limitations, such application will prolong the running of the statute as to the remainder of the debt for the full period from the time it is made. But if, in the absence of application by the debtor, it is applied by the creditor to a debt barred by the statute, such application does not remove the statutory bar as to the balance of the debt; "to have that effect, the appropriation must be made by the debtor himself." 91
91 Blake v. Sawyer, 83 Me. 129, 21 Atl. 834, 12 L. R. A. 712, 23 Am. St. Rep. 762. See "Limitation of Actions," Dec. Dig. (Key-No.) § 155; Cent. Dig. §§ 628-630.