the general statute barred a promissory note in twenty years, it was held insufficient to reply to a plea of the statute of limitations that the maker died within twenty years, without averring also that the suit was brought within the statutory period of extension.181 But where a statute, as in Illinois, requires the holder to proceed within two years after the death of the principal debtor by filing his claim against his estate or by bringing suit against the surety, he may proceed within the time by action against the surety, without also filing his claim against the estate of the principal.162

At common law, if the debtor dies before action brought, and no executor is appointed, his death will not stop the running of the statute.163 And the statute will, in general, apply only to an executor appointed after its passage,164 and to cases where the maker dies before the note is barred.16. Under the New York statute, providing for suit within eighteen months after the maker's death, such action may be brought on a demand note more than six years after its date, if the maker has died within the six years, and the suit is brought within the statutory period afterwards. 166 And if the debtor resided out of the state until the action accrued and until his death, it has been held that the statute will run only from the time when letters of administration are granted within the state.167 But where the action against the maker's administrator is barred, and the indorser afterwards pays

tation of claim, and four months after refusal for suit. Continental Life Ins. Co. v. Barber, 50 Conn. 569.

161 Hiatt v. Hough, 11 Ind. 161.

162 Rev. St. c. 132, § 3; Grindol v. Ruby, 14 Ill. App. 439.

163 Byles, Bills, 349; Chit. Bills, 685; Rhodes v. Smethurst, 4 Mees. & W... 42, affirmed in 6 Mees. & W. 351.

164 West Feliciana R. Co. v. Stockett, 13 Smedes & M. (Miss.) 395. But the statute does not apply to a note maturing after the maker's death. Sivley v. Summers, 57 Miss. 712.

165 Boyce v. Francis, 56 Miss. 573.

166 Wenman v. Insurance Co., 13 Wend. 268. But a clause making it payable, in case of the maker's death, out of a particular fund, or out of his. estate, will not postpone the statute of limitations. In re Long, 2 N. Y. St. Rep. 197.

167 Davis v. Garr, 6 N. Y. 124. But in Illinois the statute begins to run from his death in another state, Hibernia Banking Ass'n v. Commercial Nat.. Bank, 157 Ill. 524, 41 N. E. 919.

a renewal given by the administrator, he cannot bring an action even in equity against the maker's estate.168

Disabilities Excepted.

§ 1602. The statute of James I. and most of the American statutes of limitation do not run against a holder during the personal disability of infancy, insanity, or coverture (where that is still a disability).16 But, after the statute has begun to run, the disability of a later holder will not suspend it.170 And, when the disability that

168 White v. Thompson, 79 Me. 207, 9 Atl. 118, 10 East. Rep. 836.

169 Benj. Chalm. Dig. art. 253; 2 Edw. Bills & N. § 961; 2 Pars. Notes & B. 633; Scarpellini v. Atcheson, 7 Q. B. 864. Action may be brought after disability, and within one year: IOWA (Code, § 3453); KANSAS (Gen. St. c. 95, § 13); MINNESOTA (Gen. St. § 5147); NEW YORK (Code Civ. Proc. § 396); OREGON (Code Civ. Proc. § 17); SOUTH CAROLINA (Code Civ. Proc. § 122); WISCONSIN (Sanb. & B. Ann. St. § 4233). And in MISSOURI the representatives of persons dying under disability have one year in which to sue (Rev. St. § 6780). Two years: ILLINOIS (Hurd's Rev. St. c. 83, § 21); INDIANA (Horner's Rev. St. § 296); NEW HAMPSHIRE (Pub. St. c. 217. $7). Three years: DELAWARE (Rev. Code, c. 123, § 13); MARYLAND (Pub. Gen. Laws, art. 57, § 2); NORTH CAROLINA (Code, § 163); TENNESSEE (Shannon's Code, § 4448). But not beyond twenty years in all. ALABAMA (Code, § 2624). Four years: CALIFORNIA (Code Civ. Proc. § 352); TEXAS (Rev. St. art. 3373). Five years: ARKANSAS (Sand. & H. Dig. § 4833); KENTUCKY (Ky. St. § 2525); MAINE (Rev. St. c. 81, § 88); MINNESOTA, except in case of infancy (Gen. St. § 5147); NEBRASKA (Comp. St. § 5607); SOUTH CAROLINA, except in case of infancy (Code Civ. Proc. § 122); VIRGINIA, but not beyond twenty years from time right of action accrued (Code, § 2931). Six years: COLORADO (Mills' Ann. St. § 2915); GEORGIA (Civ. Code, § 3779); MASSACHUSETTS (Pub. St. c. 197, § 9); MICHIGAN (How. Ann. St. § 8718); MISSISSIPPI (Ann. Code, § 2146), but unsoundness of mind does not extend time more than twenty-one years; NEVADA (Gen. St. § 3652); NEW JERSEY (2 Gen. St. p. 1975, § 11); PENNSYLVANIA (Dig. p. 1215, § 22); RHODE ISLAND (Gen. Laws, c. 234, § 6); VERMONT (V. S. § 1209). Ten years: MISSOURI (Rev. St. § 6779); WEST VIRGINIA (Code, c. 104, § 16). Fifteen years: OHIO (Bates' Ann. St. § 4986).

170 Causey v. Snow (N. C.) 29 S. E. 359. On the other hand, there may be concurrent causes for suspension before it begins to run; e. g. on a note by husband to wife, existing coverture, Biggerstaff's Adm'r v. Biggerstaff's Adm'r (Ky.) 40 S. W. 671; Morrison v. Brown, 84 Me. 82, 24 Atl. 672; and, after coverture ended by death, the further statutory extension on death of party liable.

Id.

172

stayed the statute is once removed, the statute begins to run, and is not stayed by any fresh disability.171 In Mississippi, a married woman's note given for the purchase of land is barred as a note, and not as an "express trust" (on which the statute allows a longer time).1 So, where one borrows a ward's money from his guardian, and gives a note to the guardian, he is a debtor, and not a trustee, and is protected by the limitation as to ordinary debts.173 On the other hand, an infant, who is protected by the disability clause of the statute, may sue as a distributee of his ancestor's estate, and will not be barred by the previous negligence of the administrator.174

Joint Obligations-Principal and Surety.

§ 1603. Where several parties are jointly bound, process served upon one will stop the running of the statute as to all.175 And, if judgment is rendered against several partners as makers or acceptors, an action cannot be maintained against another and secret partner subsequently discovered after the statute has run out.176 But if an action is begun against two joint makers, and one is relieved by the statute, judgment may be entered against the other who remains liable. If two of three joint makers are discharged by the statute, and the third (who is not discharged) pays the note, he may bring suit for contribution against the others.178 And, conversely, where one who

11 Byles, Bills, 352; 2 Pars. Notes & B. 645; Duroure v. Jones, 4 Term R. 310; Smith v. Hill, 1 Wils. 134; Ruff's Adm'r v. Bull, 7 Har. & J. (Md.) 14: Amole's Adm'rs' Appeal, 115 Pa. St. 356, 8 Atl. 614.

172 McNair v. Stanton, 57 Miss. 298.

173 Wilson v. Sibley, 54 Miss. 656. But the guardian may be barred, and not the infant ward. Eckford v. Evans, 56 Miss. 18.

174 Pittman v. McClellan, 55 Miss. 299.

175 Rogers v. Gibbs, 24 La. Ann. 467. But one of two several makers may plead the statute, although the other is liable by reason of a several judgment, Britton v. Bush, 31 La. Ann. 264; or other bar, Pope v. Risley, 23 Mo. 185. 176 Navassa Guano Co. v. Willard, 73 N. C. 521.

177 Reading v. Beardsley, 41 Mich. 123, 1 N. W. 965. So, a partnership note may be barred as to one maker, and not as to the other. Hapgood v. Watson, 65 Me. 510.

178 Boardman v. Paige, 11 N. H. 431. This has been expressly provided against by statute in INDIANA (Horner's Rev. St. § 306).

has been discharged pays the note, he may sue the other who has not been discharged for contribution.179

On the other hand, if the claim of one surety against the principal is barred, but he recovers in contribution against his co-surety, the latter is also barred as against the principal.180

So, if an indorser pays a note after it is barred, he cannot recover against the maker. 181 But an indorser may be held liable-e. g. by reason of payments of interest-although the maker is discharged.182 In general, however, a note barred as against the principal is barred as against the surety.183

Limitations Reckoned from Maturity.

§ 1604. The statute begins to run against a party from the time when his action first accrued, although the action might have been fruitless at that time.184 And it is reckoned up to the time when suit is begun. In determining such time, the law has respect to the actual commencement of the suit, and not to the time of filing an amended or supplementary petition.185 The statute runs, in general, from the maturity of a bill, and not from its date.156 But, if the bill is dishonored by nonacceptance, the statute will run from that time, and not from a subsequent refusal on presentment for payment.187

179 McClatchie v. Durham, 44 Mich. 435, 7 N. W. 76.

180 Stone v. Hammell, 83 Cal. 549, 23 Pac. 703.

181 Woodruff v. Moore, 8 Barb. (N. Y.) 171.

182 Union Nat. Bank v. Lee, 33 La. Ann. 301.

183 Auchampaugh v. Schmidt, 70 Iowa, 642, 27 N. W. 805.

184 Byles, Bills, 346; 2 Edw. Bills & N. § 957; 2 Pars. Notes & B. 639; Emery v. Day, 1 Cromp. M. & R. 245, 4 Tyrw. 695. And where notice of dishonor is necessary before suit against the drawer or indorser, it would seem that the statute of limitations should begin to run from such notice. Benj. Chalm. Dig. art. 252.

185 Smith v. Kinney's Ex'rs, 33 Tex. 283; Killebrew v. Stockdale, 51 Tex. 529. So, an action begun in due time by an administrator will inure to the benefit of an heir who is afterwards allowed to intervene. Foote v. O'Roork, 59 Tex. 215. But there seems to be no trace in the United States of the old English practice of continuing writs not actually issued, Byles, Bills, 348; or renewing writs once issued, under 15 & 16 Vict. c. 76; 2 Wm. IV. c. 39. 186 Byles, Bills, 346; Chit. Bills, 684; 2 Pars. Notes & B. 642.

187 Byles, Bills, 348; Benj. Chalm. Dig. art. 252; 2 Pars. Notes & B. 644; Whitehead v. Walker, 9 Mees. & W. 506. And see § 1136, supra.

If it is payable at a certain period from date, the maturity is fixed, and the statute will run from that time.188 And if, by mistake, the date is made 1841, instead of 1840, the statute will run from the day as expressed.189 If a bill is payable at a certain time after sight, the statute will run, in like manner, from its maturity.1 190 But, if it is payable 12 months after notice, it will not begin to run until 12 months after notice is given.191 So, if it is payable 24 hours after demand.192 If the promise is to pay "when able," it will not begin to run until the maker becomes able, and it is for the jury to determine that time.193 But it has been held that a note payable "so soon as I can collect it out of C." becomes due within a reasonable time, and the statute will begin to run then.194 If it is payable "at such times and by such installments as the directors shall from time to time assess," it will run from the time of such assessment.195 And, if a note is payable in installments, the statute will run upon each installment from its maturity. 19 And, if the whole becomes due upon default of any installment, the statute will run against the whole note from the time of its

196

188 Wittersheim v. Lady Carlisle, 1 H. Bl. 631; Renew v. Axton, Carth. 3. So where the bill is offered as evidence of an account stated. Fryer v. Roe, 12 C. B. 437.

189 Bumpass v. Timms, 3 Sneed (Tenn.) 459.

190 Byles, Bills, 347; Chit. Bills, 685; 2 Pars. Notes & B. 644; Sturdy v. Henderson, 4 Barn. & Ald. 592; Sutton v. Toomer, 7 Barn. & C. 416; 1 Man.

& R. 125.

191 Clayton v. Gosling, 5 Barn. & C. 360, 8 Dowl. & R. 110.

192 Byles, Bills, 347; Chit. Bills, 686; Thorpe v. Booth, Ryan & M. 388. But, if a one-day note is not delivered for many months after its date, the statute will be reckoned from one day after its delivery. Collins v. Driscoll, 69 Cal. 550, 11 Pac. 244.

193 Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383, reversing 29 Hun (N. Y.) 243. So, if payable when a railroad is constructed. Rose v. Railroad Co., 31 Tex. 49. If payable "as fast as money shall come into" the treasury of a corporation, from time when sufficient funds are received. Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646. And see, too, Sawyer v. Colgan, 102 Cal. 283, 36 Pac. 580, if payable out of a particular fund; Iron Mountain & H. R. Co. v. Stansell, 43 Ark. 275. And see § 119, supra.

194 Woolbright v. Sneed, 5 Ga. 167. So, where it was in work to be done. Weymouth v. Gile, 83 Me. 437, 22 Atl. 375.

195 In re Slater Mut. Fire Ins. Co., 10 R. I. 42.

196 Bush v. Stowell, 71 Pa. St. 208; Eichman v. Hersker, 170 Pa. St. 402, 33 Atl. 229. But see 2 Pars. Notes & B. 644.

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