In suits by aliens, time deducted. time, and within one year after the issuing of letters testamentary or of administration. 354. NOTE.-Stats. 1850, p. 343. 1. "IF A PERSON AGAINST WHOM AN ACTION MAY BE BROUGHT DIE," ETC.-See Smith vs. Hall, 19 Cal., p. 85. 2. ESTATES OF DECEASED PERSONS-ADMINISTRATION NOT GRANTED.-A note due shortly after the death of the maker, in 1852, letters of administration were issued in 1856, and no notice to creditors having been published, the note was presented to the administrator in 1859 and rejected. Suit was brought on the claim immediately after rejection. Held: the note was not barred by the Statute of Limitations.--Smith vs. Hall, 19 Cal., p. 85. The Statute of Limitations does not begin to run when no administration exists on decedent's estate at the time the cause of action accrued.-Douglada vs. De la Guerra, 10 Cal., p. 386; Smith vs. Hall, 19 Cal., p. 85; see, also, Soto vs. Kroder, 19 Cal., p. 87. When a person is an alien subject, or citizen of war to be of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. Provision where has been reversed. NOTE.-Stats. 1850, p. 343. 355. If an action is commenced within the time. judgment prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal. Provision where action is stayed by NOTE.-Stats. 1850, p. 343. 356. When the commencement of an action is stayed by injunction or statutory prohibition, the time injunction. of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. Disability must exist NOTE.-Stats. 1850, p. 343. 357. No person can avail himself of a disability, when right unless it existed when his right of action accrued. of action accrued. NOTE.-Stats. 1850, p. 343. 358. When two or more disabilities coexist at the time the right of action accrues, the limitation does not attach until they are removed. NOTE.-Stats. 1850, p. 343. When two or more disabilities exist, etc. not applicable to actions against etc. 359. This title does not affect actions against This Title Directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability Directors, created by law; but such actions must be brought Limitawithin three years after the discovery by the aggrieved such cases party of the facts upon which the penalty or forfeiture attached, or the liability was created. NOTE.-Stats. 1850, p. 343. 360. No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this Title, unless the same is contained in some writing, signed by the party to be charged thereby. NOTE.-Stats. 1850, p. 343. 1. NEW PROMISE TO BE IN WRITING.-At an early period after the passage of the English Statute of Limitations (21 James I, Chap. 16), an impression prevailed that the statute was not to be favored; and, accordingly, a very slight acknowledgment, proved by as slight testimony, was permitted to overcome the statute.-Parson's Mercantile Law, p. 233; 10 Barb., S. C., p. 568. But the modern cases upon this subject have established the rule that to take a case out of the operation of the statutes, there must have been either an express promise to pay, or an admission of the debt in terms so distinct as that a promise might reasonably be inferred therefrom. If, however, the admission was accompanied by qualifying words, then it would not amount to a promise.-Chitty on Con., pp. 712-714. The object of our statute was to change a rule of evidence, and now to require written where verbal testimony was formerly sufficient. The matter to be proved is the acknowledgment or promise, and the only competent evidence is a writing signed by the party to be charged. But whether the acknowledgment or promise when, when proved, be sufficient to take the case out 26-VOL. I. tions in prescribed. Acknowl new edgment or promise must be in writing. of the operation of the Act, is left to depend upon reason and authority, as it did before.-28 Eng. C. I. R., p. 82; Fairbanks vs. Dawson, 9 Cal., p. 91. See, also, Barron vs. Kennedy, 17 Cal., p. 574, commenting on Fairbanks vs. Dawson, 9 Cal., p. 89; and as to effect of part payments and proof of acknowledgment of debt, see these cases commented on and Fairbanks vs. Dawson, supra, affirmed, in Pena vs. Vance, p. 142. See, further, Heinlin vs. Castro, 22 Cal., p. 100; Porter vs. Elam, 25 Cal., p. 291. 2. PROMISE MUST BE IN WRITING.-Where a memorandum book was kept by plaintiff and a pass book by defendant, and these books were compared, the account found to be correct, and so acknowledged orally by the defendant, yet it did not take the case out of the statute as defined by this section.-Weatherwax vs. Cosumnes V. M. Co., 17 Cal., p. 344. The party to be charged must sign his name to the writing. Pena vs. Vance, 21 Cal., p. 142. 3. EFFECT OF STATUTE OF LIMITATIONS.-The Statute of Limitations does not extinguish a debt nor raise a presumption of its payment. It only bars the remedy, and thus becomes a statute of repose.-McCormick vs. Brown, 36 Cal., p. 180. 4. NEW PROMISE.-NATURE OF ACTION ON CAUSE THAT IS BARRED BY THE STATUTE.-When a creditor sues after the statute has run upon the original contract, his cause of action is not founded on the original contract, but on the new promise; the moral obligation arising upon the original contract being a sufficient consideration for the new promise.-McCormick vs. Brown, 36 Cal., p. 180. 5. NATURE OF THE CONTRACT RESULTING FROM MAKING THE STATUTORY ACKNOWLEDGMENT ON NEW PROMISE.-Under the Statute of Limitations there are two ultimate facts that may be proved in the mode therein prescribed-a continuing contract, and a new contract. The statutory acknowledgment or promise, if made while the original contract is a subsisting liability, establishes a continuing contract; while, if made after the bar of the statute, a new contract is created.McCormick vs. Brown, 36 Cal., p. 180. 6. LIMITATION OF ACTION ON NEW PROMISE TO PAY JUDGMENT.-An action on a new promise to pay a judgment, so as to avoid the bar of the statute, must be brought within four years from the making of the new promise.-McCormick vs. Brown, 36 Cal., p. 180. 7. NEW PROMISE NECESSARY TO SUPPORT ACTION ON CAUSE THAT IS BARRED.-A creditor cannot re 361. cover after the statute has run upon the original con- 8. NATURE OF NEW PROMISE.-The new promise 9. NATURE AND SCOPE OF ACKNOWLEDGMENT.An acknowledgment, within the statute, to support an implied promise, must be a direct, distinct, unqualified, and unconditional admission of the debt which the party is liable and willing to pay. Such acknowledgment cannot be deduced from an offer or promise to pay a part of the debt, or the whole debt in a particular manner, or at a specified time, or upon specified conditions.-McCormick vs. Brown, 36 Cal., p. 180. 10. TERMS OF EXPRESS PROMISE.- An express promise, to be available to the creditor, must be either direct, certain, and unconditionally a specified part of the debt, or a like offer, upon specified conditions as to either time or manner, or both, to pay the whole or some part of the debt, or a direct conditional promise to pay the whole or a specified part of the debt; but in case of such offer or conditional promise, the creditor can only recover by showing an acceptance by him of the offer as made, or a performance on his part of the prescribed conditions of the promise.-McCormick vs. Brown, 36 Cal., p. 180. 11. NEW PROMISE GENERALLY.-See Farrell vs. Palmer, 36 Cal., p. 187; also, Chabot vs. Tucker, 39 Cal., p. 434, and authorities there cited. laws of States, When a cause of action has arisen in another Limitation State, or in a foreign country, and by the laws thereof other an action thereon cannot there be maintained against effect of. a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued. NOTE.-Stats. 1852, p. 161; Nelson vs. Nelson, 6 Existing causes of action not affected. Word construed, 362. This Title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the provisions of this section. NOTE.-See, also, Secs. 5, 9, ante. 363. The word "action" as used in this Title is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature. NOTE. This section was added by Act of April 1st, 1872. TITLE III. OF THE PARTIES TO CIVIL ACTIONS. SECTION 367. Action to be in name of party in interest. 368. Assignment of thing in action not to prejudice defense. 369. Executor, trustee, etc., may sue without joining the persons beneficially interested. 370. When a married woman is a party, actions by and against. 371. Wife may defend, when. 372. Infant to appear by guardian. 373. Guardian, how appointed. 374. Unmarried female may sue for her own seduction. 378. Who may be joined as plaintiffs. 379. Who may be joined as defendants. 380. Parties defendant in an action to determine conflicting claims to real property. 381. Parties holding title under a common source, when may join. 382. Parties in interest, when to be joined. When one or more may sue or defend for the whole. 383. Plaintiff may sue in one action the different parties to commercial paper. |