Surety. The statute begins to run against a surety paying a debt only from the time of payment ; Leak v. Covington, 99 N. C. 559, 6 S. E. 241; Mentzer v. Burlingame, 78 Kan. 219, 97 Pac. 371, 18 L. R. A. (N. S.) 585.
New promise to pay debt barred. There is another important class of exceptions, not made by the statute, but by the courts, wherein, although the statutory limitation may have expired, parties bringing them selves within the exception have always been allowed to recover. In actions of as sumpsit, a new express promise to pay, or an acknowledgment of existing indebtedness made under such circumstances as to be equivalent to a new promise and within six years before the time of action brought, will take the case out of the operation of the statute, although the original cause of action accrued more than six years before that time; Poll. Contr. 625 ; Browne v. French, 3 Tex. Civ. App. 445, 22 S. W. 581. And this proceeds upon the ground that as the statutory limitation merely bars the remedy and does not discharge the debt: there is something more than a merely moral obligation to support the promise,—to wit, a pre-existent debt, which is a sufficient con sideration for the new promise; Johnson v. Evans, 8 Gill (Md.) 155, 50 Am. Dec. 669; Phelps v. Williamson, 26 Vt. 230; Ans. Contr. 100; Fries v. Boisselet, 9 S. & R. (Pa.) 128, 11 Am. Dec. 683; Jordan v. Jordan, 85 Tenn. 561, 3 S. W. 896. The new promise upon this sufficient consideration constitutes, in fact, a new cause of action ; 4 East 399; 6 Taunt. 210; Bell v. Morrison, 1 Pet. (U. S.) 351, 7 L. Ed. 174; Hare, Contr. 259.
This was undoubtedly a liberal construc tion of the statute; but it was early adopted, and has maintained itself, in the face of much adverse criticism, to the present time. While, however, at an early period there was an inclination of the courts to accept the slightest and most ambiguous expressions as evidence of a new promise, the spirit and tendency of modern decisions are towards greater strictness, and seem to be fairly ex pressed in the learned judgment of Mr. Justice Story, in the case of Bell v. Morri son, 1 Pet. (U. S.) 351, 7 L. Ed. 174. "It has often been matter of regret, in modern times, that, in the construction of the stat ute of limitations, the decisions had not pro ceeded upon principles better adapted to car ry into effect the real objects of the statute; that, instead of being viewed in an'unfavor , able light, as an unjust and discreditable de fence, it had [not] received such support as would have made it, what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transactions may have been forgotten, or be incapable of explana tion, by reason of the death or removal of witnesses. It has a manifest tendency to
produce speedy settlement of accounts, and to suppress those prejudices which may rise up at a distance of time and liaffie every honest effort to counteract or overcome them. Parol evidence may be offered of confessions (a specie's of evidence which, it has been often observed, it is hard to disprove and easy to fabricate) applicable to such remote times as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further, and admit, that loose and general expres sions, from which a probable or possible in ference may bedgeduced of the acknowledg ment of a debt "by a court or jury, that, as the language of some cases has been, any acknowledgment, however slight, or any statement not amounting to a denial of the debt, that any admission of the existence of an unsettled account, without any specifica tion of amount or balance, and however in determinate and casual, are yet sufficient to take the case out of the statute of limita tions, and let in evidence, ahunde, to estab lish any debt, however large and at what ever distance of time ; it is easy to perceive that the wholesome objects of the statute must be in a great measure defeated, and the statute virtually repealed." . . . "If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequiv ocal and determinate; and, if any conditions are annexed, they ought to be shown to be I performed." And to the same general purport are the following cases, although it is undeniable that in the application of the rule there seems in some cases to be a looseness and liberality which hardly comport with the rule: Bluehill Academy v. Ellis, 32 Me. 260; Ventris v. Shaw, 14 N. H. 422 ; Ayers v. Rich ards, 12 Ill. 146 ; Patterson v. Cobb, 4 Fla. 481; Gartrell v. Linn, 79 Ga. 700, 4 S. E. 918 ; Richmond v. Fugue, 33 N. C. 445 ; Bryan v. Ware, 20 Ala. 687 ; Stewart v. Reckless, 24 N. J. L. 427 ; Wilcox v. Williams, 5 Nev. 206; Randon v. Toby, 11 How. (U. S.) 493,, 13 L. Ed. 784 ; Russell & Co. v. Davis, 51 Minn. 482, 53 N. W. 766 ; Custy v. Donlan, 159 Mass. 245, 34 N. E. 360, 38 Am. St. Rep. 419; In re Robbins' Estate, 7 Misc. 264, 27 N. Y. Supp. 1009; Howard v. Windom, 86 Tex. 560, 26 S. W. 483 ; Switzer v. Noffsinger, 82 Va. 518.