an attesting witness, is itself a "promissory note" within those revised statutes; and an action therein is not barred by the statute.1

$108. The statute of Maine, of 1838, in addition to the limitation act of 1821, extending to an indorsee the same right to sustain an action upon a negotiable note, attested by a witness, or by witnesses, after six years from the time of action accrued, which is given to the original promisee by the tenth section of the statute of 1821, applies to an action on a witnessed note held by an indorsee at the time the act of 1838 was passed.2

§ 109. Connected with a right of action in respect to the making and transfer of notes and bills, is the offence of usury. To entitle a person to a moiety of the penalty for usury, it must appear on the record that he prosecuted, complained, or sued for it, within the time prescribed by the statute for the commencement of process in such cases. Therefore, where the offence for which the penalty is demanded, was alleged and proved to have been committed on the fourteenth day of October, 1807, and the bill was found by the grand jury, in November, 1808, it was held, that whatever interest the complainant might have had, it was lost to him at the commencement of the prosecution; more than one year, the time limited, having elapsed. The doctrine is, that when the usurious contract, the lending and forbearance concur, the offence is committed, and the limitation runs from that time, and not from the payment of the money borrowed, to the lender. A lent B £500, and at the time of the loan it was agreed that the latter should give something more than legal interest as a compensation, but no particular sum was specified. After the execution of the deed, B gave A £50, and paid interest at the rate of £5 per cent. on the £500 for five years; at the end of which time a qui tam action was brought against A for usury. It was held, that the

1 Commonwealth Ins. Co. v. Whitney, 1 Met. (Mass.), R. 21.

2 Quimby v. Buzzle, 4 Shep. (Me.), R. 470. See sect. 7, Stat. Maine, App. p. xxxiii. The limitation of witnessed notes in Vermont, is fourteen years. App. p. xli. [Part payment of such a note within twenty years, renews it for twenty years from the payment. Estes v. Blake, 30 Me. (17 Shep.), 164; Lincoln, &c. v. Newhall, 38 Me. (3 Heath), 179; Howe v. Saunders, id. 350.]

3 Commonwealth v. Frost, 5 Mass. R. 53; Wade, qui tam v. Walton, 1 East, R. 195. The cause of action is consummate eo instanti the usury is paid. Breckenridge v. Churchill, 3 J. J. Marsh. (Ken.), R. 15.

action was not barred by lapse of time, for that the loan was substantially for no more than £450, and consequently the interest at the rate of £5 per cent. on the £500 received within the last year was usurious.1

1 Scurry, qui tam v. Freeman, 2 Bos. & Pul. R. 381. Other cases of usury, Lloyd, qui tam v. Williams, 3 Wils. R. 250; Fisher, qui tam v. Beasley, Dougl. R. 235. [Usurious interest paid more than one year before the action is brought cannot be recovered back. Pierce v. Conant, 25 Me. (12 Shep.), 33. The statute begins to run from the time of actual payment and not from the time of the agreement to pay. Rushing v. Rhodes, 6 Geo. 228. Where the delivery of personal property from the borrower to the lender is a part of a usurious transaction, the possession of such property, the usurious contract being void, by the lender, is tortious, from the beginning, and as trover will immediately lie for the property; if the action is not brought within six years from the delivery, it is barred by the statute of limitations. Schroeppel v. Corning, 5 Denio (N. Y.), 236. But Whittlesey, J., dissented, and thought the possession of the property was not tortious. Ibid. Where separate notes are given for money loaned, and for usurious interest thereon, and the latter is first paid, the payment will be considered as on account of the legal debt, and the right to recover back money paid as usury, will not accrue until the principal note is paid, and the statute of limitations will not begin to run till that time. Booker v. Gregory, 7 B. Mon. (Ken.), 439. In France the lender does not acquire the right to retain his usurious interest by lapse of time. It is there held, that a man cannot prescribe against good morals or public policy. And the law will not authorize a person to retain, or confirm him in the possession of, that which it prohibited him from taking. Troplong, Com. sur la Prescription, n. 132.]

9*

§ 110. WHEN a debt is payable at several times, that is, by instalment, the time begins to run from the expiration of the first term, for the part then payable; and, for the other parts, only from the day of the expiration of the respective terms of payment. Thus, under an act of the legislature of Maryland, incorporating a turnpike company, the shares subscribed for were to be paid for in several instalments at different times; and it was held, that the statute of limitations attached to each one as it became due.2

§ 111. But, where a sum is payable by instalments, and there is a stipulation, that, upon default, all shall become due, the statute runs

1 1 Evans's Pothier, 404. Under such circumstances, the courts would very probably be disposed to favor every implication of an acknowledgment extended to the time of the latest payment. Ibid.

2 Baltimore, &c. Turn. Co. v. Barnes, 6 Harr. & J. (Md.), Rep. 57. [Burnham v. Brown, 10 Shep. (Me.), 400. But where a commissioner sold slaves on a credit of one, two, and three years, titles to be made on the payment of the first instalment, with a reservation of the right to sell again on non-payment by the purchaser, and at his risk, and the slaves were delivered, it was held, that the statute began to run in favor of the purchaser on his failure to pay the first instalment. Singleton v. Heriott, 3 Rich. (S. C.), 321. That where interest is payable annually, the statute does not begin to run till some part of the principal is due; see Grafton Bank v. Doe, Henderson & Hamilton, and Ferry v. Ferry, cited ante, § 95, n. And see post, § 140.]

as to the whole demand from the time of default made. In Hemp v. Garland, the declaration stated, that, in 1832, defendant, being indebted to plaintiff, in £330, gave a warrant of attorney for the amount, subject to a defeasance, stating that the warrant was given to secure payment of the above sum by instalments, the last of which was payable in 1835; and that, in case default should be made in payment of any of the instalments, the plaintiff should be at liberty to enter up judgment and issue execution, levy, recover, and receive all or so much of the debt as should be unpaid at the time, the same as if all the periods of payment had expired by effluxion of time. And thereupon, in consideration that the plaintiff would forbear until the time specified in the defeasance, defendant promised to pay the instalments at the times mentioned. The declaration then stated that plaintiff forbore, and alleged non-payment of some of the instalments. Plea, statute of limitations and issue thereon. It appeared at the trial, that the first default in payment of an instalment was made more than six years before action. It was held, that the plaintiff might have sued on the first default for the whole amount remaining unpaid, and that therefore the statute was a bar to all the instal

ments.

§ 112. In assumpsit on a parol promise to guarantee the payment of a mortgage payable by instalments, it was held, that the statute is to be considered as running only from the year after the last instalment became due.2

2. Conditional Promises.

§ 113. While a promise is suspended by a condition, the statute does not run from the time of making it; for no right of action accrues till the condition is performed, or the event stipulated for happens. If A promises B to pay him a sum of money if he will do a

1 Hemp v. Garland, 3 G. & Dav. R. 402 (Q. B.).

2 Overton v. Tracy, 4 Serg. & Rawle (Penn.), R. 311.

3 1 Evans's Pothier, 404; Changeur v. Gravier, 5 Mart. (Louis.), R. 545. [Gueno v. Soumastre, 1 La. Ann. R. 44; Stewart v. Martin, 12 id. 356. If, in a contract to pay money on a condition, no time of payment or performance of the condition be fixed, the statute begins to run after the expiration of a reasonable time for payment. Doe v. Thompson, 2 Foster (N. H.), 217. The fact that an indorser of a note takes security of the maker, and receives demand and notice, does not have the effect to set the statute in motion before the maturity of the note. Cockrill v. Hobson, 16 Ala. 391.]

particular act, and B does the act, the promise becomes binding, although B, at the time of the promise, does not engage to do the act. In the intermediate time, the obligation of the promise is suspended. Until the performance of the condition of the promise, there is no consideration, and the promise is nudum pactum; but, on the performance of the condition by the promise, it is clothed with a valid consideration, which relates back to the promise, and it then becomes obligatory. Where a party promised by a writing signed to pay when he was able, the statute commences running from the time when he becomes able to pay, though the plaintiff knew not of his ability, as he was bound to inform himself upon the subject; and no demand is in such case necessary before bringing the action.2

§ 114. But the condition must be clearly expressed; and, therefore, trustees, empowered to raise moneys under a local act, had a meeting, and verbally ordered that money should be raised to pay the tradesmen; it was held (the plaintiff having done work for them), that the statute began to run from the time when the work was done, and not from the time when the trustees were in funds.3

3. Liability depending on a Contingency.

§ 115. The commencement of a right of action may depend upon a contingency, or the happening of a certain event, or the ascertainment of what is uncertain. Where a note is payable when a certain mortgage, holden by the maker, shall be collected, a cause of action accrues when the mortgagee enters into possession by virtue of foreclosure. In judgment of law, the mortgage is then collected, and unless a suit is brought upon the note within six years after happen

1 Train v. Gold, 5 Pick. (Mass.), R. 384. Also, Gardner v. Webber, 17 id. 407. 2 Waters v. Tufton, Earl of Thanet, Q. B., 20 L. J. R. 87 (Hilary, 1842); 2 G. & D. R. 166, cited in this manner in Browne on Actions, 70. And see post as to conditional new promises and acknowledgments.

[And where one of two par

8 Emery v. Day, 1 Cromp. Mees. & Rosc. Ex. R. 245. ties in settlement pays a claim which he alleges has already been settled by giving up a certain note, and the other promised to refund the money if it was so, it was held, that the statute of limitations began to run from the time of the promise. Durham v. Angier, 2 App. (Me.), 242.]