The next point to be considered is that as to the circumstances under which the operation of the statute, as a bar, is either wholly or partially suspended.

The suspension of its operation, in respect of transactions where credit has been given, or where fraud has been committed but not discovered, has been before alluded to; and of a similar nature are the provisions in section 109, by which actions against the directors or stockholders of a monied corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by law, may be brought at any time within six years, after the discovery by the aggrieved parties, of the facts upon which such penalty or forfeiture attached, or such liability was created, without reference to the period when such facts actually occurred.

The operation of the statute may be also suspended. 1st. By disability of the parties.

2d. By part payment or written acknowledgment of the claim-which points will be successively considered.

The first disability treated of by the Code, is that of absence from the State, in reference to which, it is provided by section 100: That the original absence of a defendant from the State at the time that a cause of action shall accrue against him, shall entirely suspend the running of the statute until the full period shall have elapsed after his return to the State; and further, that if, after the accruer of such cause of action, such person shall depart from and reside out of the State, the time of his absence shall, in like manner, be excluded in the computation of the period of limitation.

In the Code of 1849, a mere departure from the State was sufficient to suspend the operation of the statute; but now, under the last amendment, it must be a departure and residence. The animus revertendi will, accordingly, be an element which must necessarily enter into any future decisions on the subject. A conflict of opinion has occurred between the supreme and the superior courts, on the subject of this limitation.-In Cole v. Jessupp, 2 Barb. S. C. R. 309, it was held by the former, that any one return into the state was sufficient to take the case out of the operation of this provision, and that no other absence, subsequently occurring, could be taken into consideration.-In Ford v. Babcock, 2 Sandf. S. C. R. 518, 7 L. O. 270, it was held by the latter, on the contrary, that if there be successive absences of a

party to the action, they must be accumulated, and the aggregate of them deducted from the term of limitation. A return, however short, without residence, is nevertheless sufficient to set the statute into motion in the first instance, and it was also held, in the last case, that the provisions of it were equally applicable to residents or non-residents. The earlier decisions on this subject are fully reviewed in Ford v. Babcock, and are various and contradictory. The recent amendment will, however, remove much of the previous difficulty, inasmuch as residence out of the state is made a further condition, and mere absence will no longer suspend the operation of the statute, when, by any return, for however short a period, it has once commenced to run.

In Bogart v. Vermilyea, 1 C. R. (N. S.) 212, it was held that, in an action against one of two joint and several obligors, the fact that one of such obligors had been within the state during the whole period, did not prevent the operation of the statute from being suspended as against the other, during the absence of the latter; and such plea on his part was accordingly held to be no defence, on a reply that the suit had been brought within six years, excluding the time of such absence.

The law as to the pleading of a foreign statute of limitations, by an alien or citizen of another state, will be found fully gone into in Judge Story's admirable treatise on the Conflict of Laws, chap. XIV. sec. 576 to 583 inclusive. The conclusion come to is, that, as regards statutes of this nature, the lex fori will prevail, and that the operation of a foreign law of limitations, however unquestionable as the lex loci, cannot be pleaded in bar of an action brought within this state, within the usual period after the coming of the party into it, except probably in those rare cases where the operation of such statute shall have taken away the actual right itself sought to be enforced, and not merely the power of enforcing it

The next disabilities touched upon are laid down by sec. 101 as follows:

§ 101. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either:

1. Within the age of twenty-one years; or,

2. Insane; or,

3. Imprisoned on a criminal charge, or in execution under the

sentence of a criminal court, for a term less than his natural life; or,

4. A married woman.

The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases.

In the Code of 1851, the disabilities here provided for were extended to the case of a party entitled to bring an appeal, but on the recent amendment those words have been struck out. The conclusion of the supplementary clause is one of the recent amendments.

It effects a most important alteration of the previous law on the subject, and one most essential to be strictly borne in mind in practice. Of course this restriction is not retrospective, and can only be held to apply to rights accrued at the time of the passing of the amended measure. By sec. 106, it is made essential to the assertion of the above, or any other disabilities, that they should be in existence at the time when the right of the party asserting them accrued. Where, however, two or more disabilities are co-existent at that time, the limitation will not attach until all are removed. The cessation of one or more, whilst any other remains existent, will have no operation whatever; sec. 107.

The case of the death of a person entitled to bring an action is next provided for by sec. 102. The executor or administrator of such a person may, in all cases, prosecute such cause of action, if it be one that survive, at any time within one year after the death of the party in question, although the limitation may in the meantime have run out. Under the same section an action may be brought against the executors or administrators of a party who shall have died within the period of limitation, within one year after the issuing of letters testamentary, or of administration, without regard to the interim expiration of that period. In Bucklin v. Ford, 5 Barb., S. C. R. 393, before cited, it was held, in accordance with these principles, that where property belonging to an intestate had come into the hands of a third party after his death, but before the taking out of letters of administration, the statute only commenced to run from the latter date, without regard to the time of the actual receipt of that property.

The law, as it formerly stood in reference to the statute not running in the case of an alien enemy, during the continuance of the war with his country, is declared by sec. 103.

The reversal on appeal of the judgment on an action commenced within the periods of limitation, confers a fresh right of action upon the plaintiff, or his heirs or representatives, if asserted within one year after that reversal.-Sec. 104.

The granting of an injunction staying the commencement of an action, or any statutory prohibition of the same nature, suspends the operation of the statute altogether, during the continuance of either.-Sec. 105.

We now arrive at the consideration of those cases in which the operation of the statute may be suspended by the acknowledgment of the parties.

The provision of the Code in this respect (sec. 110) is as follows:

§ 110. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

This provision effects, as will be seen, a material alteration from the former law on the subject, by which, under certain circumstances, a parol acknowledgment was sufficient to take a case out of the operation of the statute.-See Watkins v. Stevens, 4 Barb. S. C. R. 168. Now, however, nothing short of a written acknowledgment, or an actual payment or part payment of principal or interest, will suffice to do so.

In McMullen v. Grannis, 10 L. O. 57, the defendant, having previously accepted a draft in respect of an original indebtedness of the plaintiff, and having subsequently deposited the note of a third party; by different letters acknowledged that a balance was due from him on his note, and, on the second occasion, made a remittance," to be applied on account of his note," -the two letters being within the six years, though without them the original indebtedness would have been barred.-It was held that such letters amounted to a promise sufficient to take the case out of the statute, and, (there being no evidence of any other,) that the referee in that case was warranted in inferring that the promise related to the particular indebtedness there in question. "When a promise of this kind is shown,

the onus lies upon the party setting up the statute to show that there was another indebtedness to which it might refer, and, when no other indebtedness appears, the promise will be held to refer to that which was subsisting when the promise was made."

In cases of joint indebtedness, the acknowledgment of either party will of course suffice to bind both, while the joint interest subsists. If, however, that joint interest be severed, the subsequent acknowledgment of either of the parties will not suffice to revive it as against the other. Thus in Lane v. Doty, 4 Barb. S. C. R. 530, it was held that a surviving principal on a joint promissory note, could not revive the debt by acknowledgment or part payment, as against the representatives of the surety deceased, even though the transaction took place within six years. In Van Keuren v. Parmelee, 2 Comst. 523, it was in like manner held that, after the dissolution of a partnership, a subsequent acknowledgment by one of the partners did not avail to revive the debt as against the firm.

The same principle seems to have been applied in Bogart v. Vermilye, 3 C. R. 142, to the case of joint and several indebtedness. No facts are given, but the case is there stated as follows:

A promise to pay, and part payment, by one of two joint and several debtors, within six years next before suit brought, does not take the case out of the statute of limitations as to the other defendant.

The case of Wadsworth v. Thomas, 7 Barb. S. C. R. 445, 3 C. R. 227, before cited at the commencement of this chapter, is distinct authority that no promise, subsequent to the passing of the Code, will avail to revive a debt already barred by the statute, previous to its operation; unless that promise be in the form here prescribed: although, had it been made under the old law, it would then have been sufficient.

In Woodruff v. Moore, 8 Barb. 171, it was held that the payment of a note by the endorser, after the statute of limitations had expired, on action brought against him by the then holder before the statute had run out, did not avail to revive his claim against the maker, against whom the statute had also run. The payment was held to be a payment on his own contract as endorser, and not to have been money paid to the use of the maker.