by the surety; and only payments which have been made within the. statutory term can be recovered.232 And the same is true of an action by a surety or accommodation party against his principal for exoneration; 233 or by an indorser against prior parties.234 But he cannot bind him by a payment made after the statute has discharged the prior party,235 So, if a third person, for value received from the maker, promises to pay half the note when due, the statute will run in his favor against the maker from the time the note became due, and not from the maker's subsequent payment of it."

236

In Georgia, after a suit is prosecuted against a nonresident maker to his insolvency, action may be brought against the indorser within the statutory six years after return of execution against the maker, although more than six years after indorsement and maturity of the note.237

232 Chit. Bills, 685; Davies v. Humfreys, 4 Jur. 250; Hayward v. Hapgood, 4 Gray (Mass.) 437; Sherwood v. Dunbar, 6 Cal. 53; Knotts v. Butler, 10 Rich. Eq. (S. C.) 143; Preston v. Gould, 64 Iowa, 44, 19 N. W. 834; Preslar v. Stallworth, 37 Ala. 402.

233 Reynolds v. Doyle, 1 Man. & G. 753, 2 Scott, N. R. 45; Collinge v. Heywood, 9 Adol. & E. 633; Huntley v. Sanderson, 1 Cromp. & M. 467, 3 Tyrw. 469; Scott v. Nichols, 27 Miss. 94; Graves v. Johnson, 48 Conn. 160. So, by one maker against the co-maker, whom he has accommodated, Wheeler v. Young. 143 Mass. 143, 9 N. E. 531; or by a third party who has paid for the maker, Hitt v. Sharer, 34 Ill. 9; Colburn v. First Baptist Church, 60 Mich. 198, 26 N. W. 878. And see §§ 924, 976, 981, supra. But in Pennsylvania it has been held to run from the maturity of the note. Farmers' Bank v. Gilson. 6 Pa. St. 51. So, in general, if the surety pays before maturity. Tillotson v. Rose, 11 Metc. (Mass.) 299.

234 As against acceptor, Bowman v. Wright, 7 Bush (Ky.) 375; or maker. Bullock v. Campbell, 9 Gill (Md.) 182; or prior indorser, Pope v. Bowman, 27 Miss. 194; McCrady v. Jones, 44 S. C. 406, 22 S. E. 414. Although the statute would have barred an action by the indorsee at the time the indorser brought suit. Godfrey v. Rice, 59 Me. 308. In other states, however, the statute runs against the indorser, not from the time of payment, but from the maturity of the note. Hunt v. Taylor, 108 Mass. 508; Kennedy v. Carpenter, 2 Whart. (Pa.) 344; Williams v. Durst, 25 Tex. 667. And see §§ 1605, 1608, supra. The statute runs against a surety or accommodation indorser or surety, as to his principal, from payment by him, or date of judgment against him, in TENNESSEE (Shannon's Code, § 4479).

235 Webster v. Kirk, 17 Q. B. 944; Wright v. Butler, 6 Wend. (N. Y.) 284.

236 Joiner v. Perry, 1 Strob. (S. C.) 76.

237 Stocks V. Moncas, 32 Ga. 380.

In general, an action to recover money paid for an instrument which is invalid runs from the time of the payment.23

to recover the penalty for usury paid.239

244

Suspension of Statute.

So, an action

§ 1610. There is no presumption of payment against an alien enemy from lapse of time while war is pending.240 And this was true of the Civil War in the United States,241 in whichever part of the country the creditor was. 242 This is so where a bill or note became due after the outbreak of the war. 243 But, where there was an opportunity to bring suit, it has been held in Louisiana that the statute was not suspended.24 It has been held that the statute was suspended as to a creditor residing in New Orleans against a debtor in Indiana, from August 16, 1861, to August 20, 1866, the date of the president's proclamation. 245 And other dates have been fixed in several of the states.246 Provision for the suspension of the statute in such case has been made by act of congress,247 as well as some state statutes.248 238 Willis v. French, 84 Me. 593, 24 Atl. 1010; Merchants' Nat. Bank of West Virginia v. Spates, 41 W. Va. 27, 23 S. E. 681. But see Jefferson Co. v. Burlington & M. R. Ry. Co., 66 Iowa, 385, 16 N. W. 561, and 23 N. W. 899, as to action to recover payments made by the maker on its own ultra vires bonds. 239 Louisville Trust Co. v. Kentucky Nat. Bank, 87 Fed. 143; First Nat. Bank of Gadsden v. Denson, 114 Ala. 650, 22 South. 518; Talbot v. Bank (Iowa) 76 N. W. 726.

240 Dunlop v. Ball, 2 Cranch, 180.

241 Levy v. Stewart, 11 Wall. 244; Stewart v. Kahn, Id. 493; Kahnweiler v. Anderson, 78 N. C. 133; Harrison v. Henderson, 7 Heisk. (Tenn.) 315; Neely v. Luster, Id. 354; Kilpatrick v. Brashear, 10 Heisk. (Tenn.) 372; Gwyn v. Porter, 5 Heisk. (Tenn.) 253; Yancy v. Yancy, Id. 353; Eddins v. Graddy. 28 Ark. 500; Metropolitan Nat. Bank of New York City v. Gordon, Id. 115; Randolph v. Ward, 29 Ark. 238; Ahnert v. Zaun, 40 Wis. 622; McMerty v. Morrison, 62 Mo. 140. And see § 249, supra.

242 Brown v. Hiatt, 1 Dill. 372, Fed. Cas. No. 2,011.

243 Ross v. Jones, 22 Wall. 576.

244 Rabel v. Pourciau, 20 La. Ann. 131; Payne v. Douglass, Id. 280; Barriere v. Stein, Id. 397; Norwood v. Mills, Id. 422; Lemon v. West, Id. 427. 245 Perkins v. Rogers, 35 Ind. 124.

246 In Alabama, from January 11, 1861, to September 21, 1865 (Coleman v. Holmes. 44 Ala. 124; Fox v. Lawson, Id. 319; Jones v. Nelson's Ex'rs, 51

247 See note 247 on following page. 248 See note 248 on following page.

Exception as to Nonresidence.

§ 1611. Besides the other disabilities of infancy, coverture, insanity, and imprisonment provided for by the English statute, an exception

Ala. 471). In Arkansas, from May 6, 1861, the date of the ordinance of secession, to April 2, 1866 (Hall v. Denckla, 28 Ark. 506). In Mississippi, from December, 1862, to April 2, 1867 (Clopton v. Matheny, 47 Miss. 285; Wiggle V. Owen, 45 Miss. 691), the statutory suspension being "until twelve months after peace,” i. e. April 2, 1866 (Griffing v. Mills, 40 Miss. 611). In North Carolina, from May 11, 1861, to January 1, 1870 (Plott v. Railroad, 65 N. C. 76; Johnson v. Winslow, 63 N. C. 552. In South Carolina, from April 19, 1861, to April 1, 1866 (Gooding v. Varn, Chase Dec. 286, Fed. Cas. No. 5,539). In Tennessee, by the act of 1865 (Mill. & V. Code, § 3457), from May 6, 1861, to January 1, 1867 (Boothe v. Allen, 4 Heisk. 258). In Texas, from the act of secession, January 28, 1861, until the new constitution was accepted by congress, March 29, 1870 (Graydon v. Sweet, 1 Woods, 418, Fed. Cas. No. 5,733; Bender v. Crawford, 33 Tex. 745). In West Virginia, from April 17, 1861, to March, 1865 (Huffman v. Callison, 6 W. Va. 301, 9 W. Va. 616).

247 "In all cases where, during the late Rebellion, any person could not, by reason of resistance to the execution of the laws of the United States or of the interruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action." Act June 11, 1864 (Rev. St. § 1048). And this statute is applicable both to the federal and state courts, and is retrospective. Stewart v. Kahn, 11 Wall. 493.

248 ALABAMA (Code, § 2638); CALIFORNIA (Code Civ. Proc. § 354); KENTUCKY (Ky. St. § 2534); MAINE (Rev. St. c. 81, § 93); MASSACHUSETTS (Pub. St. c. 197, § 10); MICHIGAN (How. Ann. St. § 8720); MINNESOTA (Gen. St. § 5150); MISSOURI (Rev. St. § 6782); NEVADA (Gen. St. $ 3654), rebellion excepted; NEW YORK (Code Civ. Proc. § 404); NORTH CAROLINA (Code, § 165); OREGON (Code Civ. Proc. § 19); SOUTH CAROLINA (Code Civ. Proc. § 124); TENNESSEE (Mill. & V. Code, § 3457); TEXAS (Rev. St. art. 3215); WEST VIRGINIA (Code, c. 104, § 18); WISCONSIN (Sanb, & B. Ann. St. § 4232). So, in GEORGIA by ordinances of 1865 and 18. Brian v. Banks, 38 Ga. 300; Goodroe v. Neal, 45 Ga. 109. The Mississippi statute has been held to be valid in Hill v. Boyland, 40 Miss. 618; Mayfield v. Barnard, 43 Miss, 270; Buchanan v. Smith, Id. 90. But a waiver of the statute will expire six years from the date of the waiver, and not add six years to the time of the statutory suspension. Maddux v. Jones, 51 Miss. 531. In Smith v. Rogers, 65 N. C. 181, it was held that the act of North Carolina was not affected by the general repealer of March 10, 1866.

250

is also made where the plaintiff is absent "beyond seas." 249 And the statute has been held to be suspended in such case, although both of the parties were in France and the note was barred there.2 And the uncontradicted evidence of one plaintiff is sufficient to prove the nonresidence of both. 251 The exception in favor of a nonresident plaintiff is made in several of the American statutes (although the phrase "beyond seas" does not occur in most of them),252 and has been held to apply even against a maker who has resided within the jurisdiction. long enough to bar the statute without such exception.253 In Indiana the phrase "legal disabilities" has been held to include the absence of the plaintiff from the United States."

234

253

Most of the United States provide also that the statute shall be suspended if the person against whom the action accrues is at the time absent from the state, and until his return into the state.25 An exception has also been provided in Great Britain as to the defendant's absence "beyond seas." 256 But, if the defendant resides once

249 21 Jac. I. c. 16, § 7. It is sufficient to aver that he was absent beyond seas at maturity of the bill, and until within six years, without averring his return, and that the action was begun within six years afterwards. Forbes v. Smith, 11 Exch. 161. But the absence of one of two joint plaintiffs within six years is not sufficient. Perry v. Jackson, 4 Term R. 516.

250 Lafond v. Ruddock, 13 C. B. $13.

251 Koch v. Shepherd, 18 C. B. 191.

252 COLORADO (Mills' Ann. St. § 2914); ILLINOIS (Hurd's Rev. St. c. 83, § 9); MAINE (Rev. St. c. 81, § 88); MICHIGAN (How. Ann. St. § 8718); RHODE ISLAND (Gen. Laws, c. 234, § 6); TENNESSEE (Shannon's Code, § 4448). So, in PENNSYLVANIA (Dig. p. 1215, §§ 22-24), being citizens of Pennsylvania "beyond seas." And formerly in MICHIGAN, meaning "beyond the limits of the United States," Darling v. Meachum, 2 G. Greene (Iowa) 602; and in OHIO, meaning "without the limits of the state," Richardson's Adm'rs v. Richardson's Adm'rs, 6 Ohio, 125.

253 Erskine v. Messicar, 27 Mich. 84; McMillan v. Wood, 29 Me. 217. 254 Bauman v. Grubbs, 26 Ind. 419; INDIANA (Horner's Rev. St. § 296); and a similar phrase is used in KANSAS (Gen, St. c. 95, § 13).

255 ALABAMA (Code, § 2622); ARKANSAS (Sand. & H. Dig. § 4834); CALIFORNIA (Code Civ. Proc. § 351), if without the United States; COLORADO (Mills' Ann. St. § 2914); CONNECTICUT (Gen. St. § 1384); DELAWARE (Rev. Code, p. 889, § 14); FLORIDA (Rev. St. § 1284); ILLINOIS (Hurd's Rev. St. c. 83, § 18); INDIANA (Horner's Rev. St. § 297); IOWA (Code. § 3451); KANSAS (Gen. St. c. 95, § 15); KENTUCKY (Ky. St. § 2531); LOU256 Byles, Bills, 351; 4 Anne, c. 16, § 19.

within the jurisdiction, his subsequent nonresidence will not suspend the running of the statute.257 And even without such bar to the statute from nonresidence, if the action is begun after 20 years, a presumption of payment will arise from the lapse of time.258 The exception in the statute means an established residence out of the state, and not a temporary absence, however long.260 On the other hand,

239

ISIANA (Rev. Civ. Code, art. 3541); MAINE (Supp. Rev. St. c. 81, § 103); MARYLAND (Pub. Gen. Laws, art. 57, § 5); MASSACHUSETTS (Pub. St. c. 197, § 11); MICHIGAN (How. Ann. St. § 8721); MINNESOTA (Gen. St. § 5145); MISSISSIPPI (Ann. Code, § 2748); MISSOURI (Rev. St. § 6781); NEBRASKA (Comp. St. §§ 5607, 5610); NEVADA (Gen. St. § 3651); NEW HAMPSHIRE (Pub. St. c. 217, § 8); NEW JERSEY (2 Gen. St. p. 1975, § 15); NEW YORK (Code Civ. Proc. § 40); NORTH CAROLINA (Code, § 162); OHIO (Bates' Ann. St. § 4989); OREGON (Code Civ. Proc. § 16); PENNSYLVANIA Dig. p. 1215, §§ 22-24), if beyond the limits of the United States; RHODE ISLAND (Gen. Laws, c. 234, § 5); SOUTH CAROLINA (Code Civ. Proc. § 121); TENNESSEE (Shannon's Code, § 4455); TEXAS (Rev. St. art. 3216); VERMONT (V. S. § 1211); VIRGINIA (Code, § 2933); WEST VIRGINIA Code, c. 104, § 18); WISCONSIN (Sanb. & B. Ann. St. § 4231); and in VERMONT the statute was suspended by the statute of 1863 in favor of volunteers in the army. Cardell v. Carpenter, 43 Vt. 84.

257 ALABAMA (Code, § 2622); CALIFORNIA (Code Civ. Proc. § 351); COLORADO (Mills' Ann. St. § 2914); CONNECTICUT (Gen. St. § 1384); DELAWARE (Rev. Code, p. 889, § 14); FLORIDA (Rev. St. § 1284); GEORGIA (Civ. Code, § 3783); ILLINOIS (Hurd's Rev. St. c. 83, § 18); KANSAS (Gen. St. c. 95, § 15); KENTUCKY (Ky. $t. §§ 2531-2533); MAINE (Supp. Rev. St. c. 81, § 103); MARYLAND (Pub. Gen. Laws, art. 57, § 5); MASSACHUSETTS (Pub. St. c. 197, § 11); MICHIGAN (How. Ann. St. § 8721); MINNESOTA (Gen. St. § 5145); MISSOURI (Rev. St. § 7681), Sauter v. Leveridge, 103 Mo. 615, 15 S. W. 981; NEBRASKA (Comp. St. § 5610); NEVADA (Gen. St. § 3651); NEW JERSEY (2 Gen. St. p. 1975, § 15); NEW YORK (Code Civ. Proc. 401); NORTH CAROLINA (Code, § 162); OHIO (Bates' Ann. St. § 4989); OREGON (Code Civ. Proc. § 16); RHODE ISLAND (Gen. Laws, c. 234, § 5); SOUTH CAROLINA (Code Civ. Proc. § 121); TENNESSEE (Shannon's Code, § 4455); TEXAS (Rev. St. art. 3216); VERMONT (V. S. § 1211); VIRGINIA (Code, § 2933); WEST VIRGINIA (Code, c. 104, § 18); WISCONSIN (Sanb. & B. Ann. St. § 4231).

258 Bean v. Tonnele, 94 N. Y. 381; Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758.

259 Bucknam v. Thompson, 38 Me. 171; Farr v. Durant, 90 Wis. 341, 63 N. W. 274.

260 Drew v. Drew, 37 Me. 389. But see, as to a sailor's absence for two years, Parker v. Kelly, 61 Wis. 552, 21 N. W. 539.