him as surety for the insolvent principal-assignor. The paying surety cannot be defeated in an action to compel contribution by the fact that he owes the principal a sum which he might set off if sued by the principal in any action.48 42 Cosgrove et al. v. McKasy, Assignee (1896) 65 Minn. 426, 68 N. W. 76. 48 Davis v. Toulmin (1879) 77 N. Y. 280. § 190. The statute of limitations; revival of barred actions in general.1 At common law, no limitation of time within which an action must be brought, existed. The maxim that "a right never dies" was recognized. The statute of limitations presents some important questions in the law of suretyship. All American jurisdictions have enacted statutes, limiting the time within which various actions may be commenced, but all such statutes are based on the English act passed in 1623.3 Instances arise where action is barred against the principal, but not against one or more of the sureties. This frequently occurs when the principal remains in the state, and the surety removes from it. By leaving the state, the statute of limitations is suspended as to any cause of action against the surety; but his absence does not prevent the running of the statute in his benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and where there shall be two or more joint contractors no such joint contractor shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal of interest made by any person whatsoever; (c) Statute 19 and 20 Vict. C. 97 Sec. 14, known as the Mercantile Law Amendment Act, passed in 1856, which provides that“.. where there shall be two or more co-contractors or co debtors, whether bound or liable jointly only or jointly and severally, no such co-contractor or codebtor, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money, by any other or others of such co-contractors or co-debtors 309, in which the interest had been paid by the principal on an obligation. Action was brought to recover againts the surety. After quoting the proviso of this act, Tindal, C. J., observed (p. 312): "Not confining the effect of payment to the individual paying. Why? Because the payment of principal or interest stands on a different footing from the making of promises, which are often rash or ill interpreted, while money is not usually paid without deliberation; and payment is an unequivocal act, so little liable to misconstruction as not to be open to the objection of an ordinary acknowledgment "However, on the broad construction of the act, we think payment of money by one of several joint contractors an acknowledgment not within the mischief or the remedy provided by the legislature against the effect of an oral promise."' In Van Keuren v. Parmelee (1849) 2 N. Y. 523, 527, it was remarked: "Lord Tenterden's Act . which requires a writing in the case of a new promise or acknowledg ment, leaves the effect of a payment untouched." For similar comment see opinion by Chief Justice Shaw in Sigournay v. Drury (1833) 14 Pick. (Mass.) 387, 395-396. 4 Langston v. Aderhold (1878) 60 Ga. 376; Mozingo v. Ross (1898) 150 Ind. 688, 693, 50 N. E. 867. favor. It is elementary that a part payment, payment of interest, or an acknowledgment of one's own debt, either verbally or in writing (except in those states where the statute requires the promise to be in writing), will render the promisor liable, and will prevent the statute from becoming a bar, and revive the right of action if the payment or promise be made after the statute becomes a defense. Such promise may be made either by the principal or surety, and will bind the promisor. But if the promisor owes the creditor several debts, part of which are barred by statute, and others not barred, and makes payment on account without specifying any particular debt to which it is to be applied, the creditor may apply the payment to any debt he desires. If he applies it to the debt which is barred, it will revive it against the debtor." Before Lord Tenterden's Act, acknowledgment might be made in any form. However, acknowledgment of a tort will not take the case out of the statute, because that is not evidence of a new tort, as it is of a new promise in case of a contract. § 191. Statute of limitations is a statute of repose. The important question relative to the law of suretyship is, Does acknowledgment or part payment made to the creditor by either the principal or surety, before or after the statute has become a bar, toll the statute as against the others? Naturally, the language of the statute in the particular jurisdiction is im 5 Stone v. Hammell (1890) 83 Cal. 547, 23 Pac. 703, 8 L. R. A. 425, 17 A. S. R. 272. 6 Perkins v. Cheney (1897) 114 Mich. 567, 573, 72 N. W. 595. But once the debt has been merged into judgment, a new promise will not affect the running of the statute of limitations. Brammell v. Brammell (1912) 173 Ill. App. 156. 7 In Mills v. Fowkes (1839) 5 Bing. (N. C.) 455, 461, Tindal, C. J., thus summarized the law: "The civil law, it is said, applies the payment to the more burdensome of two debts, where one is more burdensome than the other; but I do not think such is the rule of our law. According to the law of England, the debtor may, in the first instance, appropriate the payment; solvitur in modum solventis: if he omit to do so, the creditor may make the appropriation; recipitur in modum recipientis: but if neither make any appropriation, the law appropriates the payment to the earlier debt." See also In re Boswell (1906) 2 Ch. 359. 8 Oothout v. Thompson (1822) 20 Johns. (N. Y.) 277; Ott v. Whitworth (1847) 8 Humph. (Tenn.) 494. portant; but, being patterned after the English statute of limitations, the American courts have found it necessary to analyze the English cases. Formerly, the conception of the statute of limitations was that it created a presumption of the payment of the debt, which could be rebutted by evidence showing the debt to be unpaid. This theory is no longer held, the courts treating the statute as a bar to the recovery of the debt. As stated by one court: "It is a statute of repose and not of presumption; and, unless the suit is commenced within the time limited, cannot be maintained. It is said to be barred."' 10 This is based upon sound public policy, and, as a very early court observed-". . . the statute of limitations, on which the security of all men depends, is to be favored. ''11 § 192. Tolling the statute by one co-obligor; Whitcomb v. Whiting. The statute being one of repose, can its operation be extended by the act of one co-obligor? The problem is a part of the larger one of the power of one or two or more joint promisors to extend or revive an obligation entered into by all jointly. The leading case among those early decided is Whitcomb v. 9 See the article, "Does Part Payment by One of Several Joint Debtors Affect the Right of the Others to Take Advantage of the Statute of Limitations?" in 32 Am. Law Rev. p. 846. In Perham v. Raynal et al. (1824) 2 Bing. 306, 308, 130 Eng. Rep. Reprint 324, it was said: "The presumption certainly is, that the debt, if any, has been paid. But that presumption may be rebutted, and is rebutted, by a subsequent acknowledgment." 10 Kerper v. Wood (1891) 48 Oh. St. 613, 620, 29 N. E. 501. Mr. Justice Story, in delivering the majority opinion for the United |