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or rim is fretted by the action of the tossing lava into caves with gothic arches, glowing like an iron forge when the men are digging out the loup," and with a red sea beating up against their sides and fantastic roofs. Sometimes a great piece of the crust, where the fire has undermined it, breaks off, and plunges through the grey scum into the red lava with a sullen roar and a mighty disturbance of the surface of the lake, followed by numerous columns of fire shooting aloft. The whole effect is grand beyond description; grandest in its fearful suggestions of what might be when such a fiery lake fills this crater of miles in extent. Many who visit the place are so fascinated by these wonderful fires-always in motion, never the same-that they spend several nights in succession on the very brink. Small need for a blanket there, unless it were a wet one! Although the air is more or less filled with the sulphur fumes, if the wind is from the basin and tolerably fresh, the smell is not unpleasant, but anywheres in the lee of Kilauea the air is horribly oppressive; people attempting to pass behind and around the lake have been nearly stifled by the vapors.

Surrounding the basin at every point of the compass, and not far from it, are cones, smoking viciously at the top and crusted with flower of sulphur. On near examination the bright eye of the lava is seen furtively Jurking in the sulphur chambers, and the crusted lava at their base is sure to be hot to the touch. In fact the whole surface of the crater is more or less warm, and burns the soles of boots so as to ruin a pair in a few hours. The vitreous lava cuts like a knife, as many a man, too eager in breaking off specimens with his hands, has learned to his cost. Some of these cones assume the most fantastic shapes. There is one not half a mile from the fires of Kilauea which is as large as a church, and at a distance looks like one. Viewed from the bank, at the distance of two miles, it has a perfect resemblance to a Gothic Cathedral, with a graceful spire, and all the grotesque yet delicate fretwork which distinguishes that order of architecture. In fact it is the only strictly Gothic Cathedral on the islands, notwithstanding that the Puseyite Bishop of Honolulu has seen fit to dignify by that name an unsightly brown building, painted to resemble freestone, and scarcely large enough to accommodate his choir.

The

Kilauea is reported by the people of Hilo to have been quite active in March of last year (1863), and in June it was still moderately so. lake had filled up, and a crust had formed over it, so that then it occupied comparatively a small area, and the impression left upon the mind that another extensive eruption could not be far off was very strong. It has often been thus choked up by the crusted lava, and then suddenly burst out afresh with redoubled fury, but the area of the eruption seems to have been more circumscribed at each successive outbreak, for nothing like the scene of grandeur described by Mr. ELLIS, and visitors following him within a few years, can be found there at present, and until another eruption, filling the entire crater, shall occur, a repetition of what they saw cannot be expected. It is questionable whether Kilauea has not found another outlet to the sea, as a small island of rock has appeared off the S. E. point of Hawaii, a mere patch of rock, to be sure, but which has grown up lately.

Still, Kilauea remains the most wonderful volcano in the world,-in constant operation since its discovery, at times on the grandest scale.

The native traditions do not go back to a time when Kilauea was silent, although they' undoubtedly refer to a time when Mauna Kea and Mauna Loa were more active, and threw out vast fields of lava. Kilauea is also wonderful, as almost the only volcano where the liquid lava and its wonderful action can be viewed, within a few rods with perfect safety, in the bowl of a crater over four miles in diameter.

COMMERCIAL LAW.-NO. 14.

THE STATUTE OF LIMITATIONS.

THE statute of 21 JAMES I., chapter 16, commonly called the Statute of Limitations, was passed in England in 1623. Among its provisions, it enacts that all actions of account and upon the case, (which include nearly all the actions which can be brought for indebtedness or damages,) provided they do not concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending, or contract without speciality, (that is, contracts without seal,) and all actions for arrearages of rent, shall be commenced and sued within six years next after the cause of such actions or suit, and not after. In few words, all claims which do not rest on a seal or a judgment must be sued within six years from the time when they arise.

The provisions of this statute were copied, without much important variation, in the statues of all our States; and upon them, as they are explained and in some respects materially modified by adjudication, the law of limitation rested, in England and in this country, until 1827, when statute of 9 GEORGE IV., chapter 14, commonly called Lord TENTERden's Act, was passed. This statute, after reciting the statute of JAMES, provides, in substance, that if a debt or promise be once barred by the Statute of Limitations, no acknowledgment of the debt or new promise shall renew the debt and take away the effect of the statute, unless the new promise is in writing, and is signed by the party who makes the promise. But this new statute expressly permits a part payment either of principal or interest of the old debt to have the same effect as before. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the other. And statutes substantially similar have been passed in Maine, Massachusetts, Vermont, New York, Indiana, Michigan, Arkansas and California.

CONSTRUCTION OF THE STATUTE.

For the law of limitation there is a two-fold foundation. In the first place, the actual probability that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But besides this reason, there is the inexpediency and injustice of permitting a stale and neglected claim or debt, even if it has not been

paid, to be set up and enforced after a long silence and acquiescence. In truth, these two reasons mingle; but as one or the other prevails, its effect is seen in the construction of this law, and in its application to cases.

If, for example, the statute is considered as only a statute of presumption, or, in other words, if it is supposed to say that a debt which is six years old shall not be demanded, because the law presumes that so old a debt must have been paid, it is obvious that, when evidence is offered to do away the effect of the law, courts will look at this evidence mainly to ascertain whether it rebuts this presumption, by proving that the debt still exists. In this view, and for this purpose, any acknowledgment or admission of the mere existence of the debt, by the debtor, would be sufficient to do away with the law. Thus, Lord MANSFIELD said, long ago, "The slightest acknowledgment has been held sufficient to rebut the presumption that an old debt has been paid; as saying, 'Prove your debt, and I will pay you'; 'I am ready to account, but nothing is due you'; and much slighter acknowledgments than these will take a case out of the statute." If, however, courts regarded the statute rather as a statute of repose, or, in other words, as intended to prevent the enforcement of stale claims, whether they were paid or not, then it is obvious that a mere admission that the debt was legal and remains unpaid, amounts to nothing. The law says, it has remained unpaid so long, that it is too late now to bring it forward. But if the debtor is willing to waive the protection of the law, and not only acknowledges the debt, but promises to pay it, there is no reason why he should not be held upon this promise.

Between these two views it may be said that the courts have fluctuated from the beginning. As soon as the statute was passed, whenever it was pleaded by the defendant in bar of the action, if the plaintiff sought to remove this bar by any words of the defendant, he was obliged to allege “a new promise" made by the defendant. This rule of pleading tends to show that, at the beginning, the statute was regarded as a statute of repose, which could not be set aside by a mere acknowledgment that the debt was unpaid. But although the rule itself indicates this, the practice of the courts took the opposite direction. An impression prevailed, not perhaps at the beginning, but early, and continued long, that the statute itself was not to be favored; that a resort to it was generally a dishonorable attempt to escape the payment of a just debt; and that the court should give its aid to the creditor who endeavored to do away the effect of this law. Such language as this was not used, but such was the practice; and, accordingly, any sort of acknowledgment, proved in almost any way, was permitted to remove the bar of the statute.

At length, however, a different, and, as we think, a far more just and rational view, prevailed. It began to be admitted by the profession and by the courts, although it never has been, perhaps, by the community, that it was a necessary and beneficial law, and should be, if not favored, at least applied fairly and rationally, and permitted to do its very useful work in suppressing stale claims. These views are now very general, both in the English courts and in our own. One effect of them was Tenterden's Act, which we have given already, and which, as may be seen, guards against the admission of loose and uncertain testimony in proof of a new promise.

Before inquiring into the rules of law which now apply to the case of

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an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in full force. This is the presumption of payment after twenty years, which is applicable to all debts; not only the simple contracts to which the Statutes of Limitation refer, that is, contracts which are merely oral, or which if written have no seal, but to specialities, or contracts or debts under seal or by judgment of court. Of these it will not be necessary to speak here, excepting to remark, that in one or two of our States the Statute of Limitation excepts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator; such a note in those States, which we believe are now only Maine and Massachusetts, may be sued at any time within twenty years after it is due. Bank-bills, and other evidences of debt issued by banks, are every where excepted from the operation of the statute.

THE NEW PROMISE.

The first question we propose to consider is, what is the new promise which suffices to take a case out of the statute. If the promise be made, the former debt, although not in itself enforceable, is considered a sufficient consideration for the new promise. This might be made as well orally as in writing, until Lord TENTERDEN's Act. But although this act requires, as matter of evidence, that the new promise shall be in writing, it does not affect at all any question respecting the character or sufficiency of the new promise; they remain to be decided by the same principles, and in the same manner, as before.

The first thing to be said is, that now, by the general consent of the courts of this country and of England, a mere acknowledgment, which does not contain, by any reasonable implication or construction, a new promise, and still more, if it expressly excludes a new promise, is not sufficient. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff: "I know we are owing you"; "I am getting old, and I wish to have the business settled"; it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defendant, on being asked to pay the note, said "he guessed the note was outlawed, but that would make no difference, he was willing to pay his honest debts, always." As he did not state in direct terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment.

Whether an acknowledgment of an existing debt is sufficient to take it out of the statute, or, in other words, whether it carries with it a promise to pay that debt, is a question of law for the court, when it is only a question as to the legal meaning and effect of the words used; for this would be a mere question of construction, which is always a matter of law only. But if the question is as to what words were used, and what was the intention of the parties to be gathered from the words and acts, this is a question of fact, and it is for the jury to determine.

The new promise need not define the amount of the debt. That can be

done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts generally, does not thereby make a new promise as to any one of them.

If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay "when I am able," the promisee must prove not only the promise, but that the promisor is able to pay the debt. Even if there seems to be a promise wholly unconditional and unqualified in its terms, it is competent for the defendant to show, by the attendant circumstances or other proper evidence, that it was not intended, nor understood, as an acknowledgment or a promise. On the other hand, if the expressions in themselves are doubtful, the plaintiff may make them clear, and show by evidence that they meant and were a promise.

As the acknowledgment should be voluntary, it follows that those made under process of law, as by a bankrupt, or by answers to interrogatories which could not be avoided, should never have the effect of a new promise.

A doctrine has prevailed, and perhaps has at present the weight of authority in its favor, according to which every new item and credit in a mutual and running account is an acknowledgment, by the party making it, that the account is open and unsettled, and so draws after it all preceding items as to have the same effect as a recognition of them, and a promise to pay the balance when that should be struck. This doctrine grew up, we think, in those days when courts disliked the Statute of Limitations, and sought opportunities, or at least favored attempts, to defeat it. Such is not the view of courts at present; and we should say that the general principles now prevalent would eventually limit this doctrine to cases where the account was mutual and open, and there was evidence that the items relied upon were intended to be charged in offset, so as to have the effect of a part-payment. But the law on this subject is not now quite clear.

PART-PAYMENT.

A part-payment of debt is such a recognition of it as implies a new promise; even if it be made in goods or chattels, if offered as payment and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in England, where one was sued for money due for a quantity of hay, and pleaded that it had been due more than six years, which was a good defence, the plaintiff proved in reply that defendant had given him within six years a gallon of gin as part-payment for his debt; and it was held that this took the case out of the Statute of Limitations, and the plaintiff recovered. But a payment has this effect only when the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be construed as carrying with it an acknowledgment that more was due and would be paid.

If a debtor owes several debts, and pays a sum of money, he has the

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