Statutes Of Limitation, laws which provide that certain debts or claims shall not be prosecuted after a certain time. The origin of these statutes, which are now found in every civilized community, was undoubtedly the probability that an old debt had been paid, and the hardship of holding a payer to pay his debt twice over because, in the lapse of time, he had lost the evidence of his payment. When therefore such a stale debt was brought before a court, the law presumed that it had been paid, without proof. Such a presumption still exists in cases not provided for by the statutes; it being a general rule of the common law of England and America, that there is a presumption of payment of all personal claims, after 20 years have passed without any evidence of acknowledgment by the debtor. But in the year 1624 (21 James I.) it was enacted by the parliament of England that all actions of account, and all actions upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, all actions of debt on any lending or simple contract, and all actions of debt for rent due, should be commenced and sued within six years next after the cause of such actions should accrue.

This statute was the foundation of all the statutes of limitation which have been since then enacted in England and in the United States; nor have they varied greatly from it. Divested of technical language, it may be said that no action can be maintained for any debt more than six years old, founded upon a simple contract; by which is meant any contract not created by a sealed instrument or resting on a judgment of court. The exception of actions founded on mutual accounts of trade between merchants is common; and in many states all mutual accounts are excepted, while in some others there is an exception in favor of a witnessed note of hand, these accounts and notes being barred only by the 20 years' presumption. For a time the courts favored these laws, and construed them liberally against the debt or action. Then, however, the views and practice of courts changed, and they seemed to regard the statutes of limitation as proper objects of dislike, and construed them very liberally in favor of the debt or action.

That is, they permitted the defence of the statute to be overthrown by slight and even frivolous evidence of any acknowledgment on the part of the debtor within six years; and although they could not say that this made the original debt any younger, and so took it out of the operation of the statute, they did say that the acknowledgment was a new promise, and maintained the action on this ground. But in recent times wiser views began to prevail. Judge Story said (5 Mason, 523): "I consider the statute of limitation as a highly beneficial statute, and entitled as such to receive, if not a liberal, at least a reasonable construction, in furtherance of its manifest object."These views now decidedly prevail both in England and America. The question, by what rule the statute shall be construed, is in fact the question whether it shall be regarded as a statute of presumption or a statute of repose. If the former, then an action founded upon an old debt is to be barred only because it is probable that an old debt has been paid; and therefore all confessions or acknowledgments, all acts and all words, in any way throwing a doubt on this payment, may be considered as overthrowing the presumption of payment, and maintaining the action.

But if it is to be regarded as a statute of repose, then it is founded on the principle that an old debt, whether it have been paid or not, should not now be brought out to disturb relations between the parties which had become settled by time; for a creditor who has been negligent enough to let his debt lie by so long, neither prosecuted nor verified, should lose it, because the peace of society requires that claims which have long slumbered should be considered as dead. Where this view was adopted, it is plain that no mere acknowledgment of an old debt would prevail against the statute; but if the debtor saw fit to make, within the six years, a distinct new promise to pay the debt, there was no reason why he might not make it, and none why, if he made it, he should not be held to perform it. So also, if the debtor saw fit to make, within the six years, a part payment of the debt, not in full, but as an acknowledgment of the whole debt, it might fairly be regarded as a promise to pay the remainder, and as reviving the balance of the debt.

These views at length prevailed so decidedly in England, that in 1828 (9 George IV.) what is there called Lord Ten-terden's act was passed; which appeared to be so reasonable, and was found in its operation so useful, that it has been widely adopted in the United States. This statute provides, in substance, that no debt which is barred by the statute of limitation shall be revived by any new promise or acknowledgment, unless that be in writing; but this statute still permits a part payment to revive the debt. - As the law now stands, it may be said that the new promise which revives a debt must not be in words of doubtful meaning, but an actual promise; some of our courts however, it must be admitted, apply the rule, even now, with much laxity. So if there be an acknowledgment, written where that is required, or spoken elsewhere, it must be a distinct acknowledgment that the debt now exists and is due. It need not acknowledge or promise any precise amount, for evidence may prove this; but it must be sufficiently precise and definite to show that this very debt was in contemplation when the promise or acknowledgment was made.

Hence, it is now clear that an acknowledgment 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 acknowledgment 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 conditional, as, "when I am able," or "if I recover such a debt," it revives the debt only if the condition be performed. - If part payment is relied upon as reviving the debt, it must be shown, by direct or circumstantial evidence, that the payment 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 payment 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 common phrase for barred by time) and some are not, and pays him a sum of money without indicating what debt it shall be applied to, the creditor may apply the payment to the outlawed debts, but cannot, by such part payment, 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 maturity 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 maybe 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 injurious 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, although but for a short time, so that the statute once begins to run, the statute is not suspended or arrested by a subsequent disability. 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 defendant 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 "beyond the seas," other phrases are used, the most common of which is " out of the state," and all are held to mean that. It is sometimes provided that if, after the action accrues, the defendant shall be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action. Where there is this provision, it has been questioned whether the aggregate of successive and distinct absences can be deducted from the time, or only one single absence.

This is determined differently; in some states but one single absence is deducted, while in others all the absences are. - The statute affects only the remedy for the debt, or the right to recover it by action, but does not affect the validity of the debt. Hence it does not affect any security given for the debt. Thus, if there be a mortgage of land or of goods to secure a note or bond, this mortgage remains in full force, although the six years have expired so that no action can be maintained on the note or bond. - Because the law of limitation is a law of remedy and not of right, it affects the method of recovering a debt, but not the debt itself; and therefore, in general, the law of the forum (lex fori), or the law of the place where the action is brought, determines the limitation, and not the law of the place where the debt is contracted. Thus, if A lives in Massachusetts, and there owes to B a certain debt which will be barred in six years, and they both go to Rhode Island, where we will suppose the debt to be barred in three years, and after three years B sues A in Rhode Island, the law of Rhode Island bars the action, although the law of Massachusetts would not.

And we think the converse proposition equally true, that if the limitation be shorter in the state where the debt was contracted, and longer in that to which the parties have come, it is this last law which prevails. In Massachusetts (11 Pickering, 36) it was held that if both parties remain abroad until the debt is wholly barred where it was contracted, and then both come into that state, the creditor may sue the debtor in Massachusetts until six years have expired after their coming into that state. The principle seems to be, that wherever the statute of limitation is relied upon in defence, it is the statute of the jurisdiction where suit is brought that must bo pleaded in bar, and the defendant must show that his case comes within it. But where a right of action is barred by lapse of time in any state, it cannot be revived in that state by a repeal of the statute. - The cases of actions founded on any specialties, as deeds, bonds, or judgments, and any action to recover land, have usually a limitation of 20 years, and in some cases 10 years. Besides these there are, in the several states, and in the United States, various provisions as to other actions, in which there is little uniformity, and of which we could make no useful statement without occupying many pages with the details.

Thus, a limited time is given within which actions may be brought against sheriffs, or marshals, or executors or administrators, or for slanderous words, or for personal assaults or trespasses. For some of these actions, and in some of the states, this limitation is very short; a year, and even less in some cases. By the application of the ancient law maxim, Nullum tempus occur-rit regi, or in other legal words, no laches (or neglect) is imputable to the king or government, it is held that rights of action possessed by the state may be enforced by action at any time, so far as the general statutes of limitation might affect them. But in many of the states there are statutes which bar the right of the state after a certain period; and it is very common to limit prosecutions for crime to some short period, excepting, however, the case of murder and perhaps some others. - The word "limitation" is also used in law with reference to instruments transferring real estate. It means that an estate cannot continue after a certain contingency occurs; the limitation of an estate is therefore the definition or restriction which confines an estate not to a time certain, but to a time which may be rendered certain by the happening of an event; as if an estate be given to hold until from the net proceeds a certain sum shall be made, or until the grantee marries.

The distinction between a limitation in a deed and a condition is technical, and sometimes difficult. In general, if an estate is given to be held by the grantee until a specified event shall occur, this is but a limitation; but if it be given only with a proviso, or a condition (that is, with the words " provided that," or on "condition that"), to the effect that the estate or interest of the grantee shall cease and determine when the event shall occur, this is not a limitation, but a condition.

Statutes Of Limitation #1

See Limitation, Statutes of.