Tork, 13 N. Y. 220; Slone v. Stone, 1 R. I. 425; Re Swigert, 119 Ill. 83, 59 Am. Rep. 789, 6 N. E. 469; Lynchburg v. Norfolk & W. R. Co. 80 Va. 237, 56 Am. Rep. 592; Roberts v. Savannah, F. & W. R. Co. 75 Ga. 225; Laubenheimer v. Månn, 19 Wis. 521; Haenschen v. Luehtemeyer, 49 Mo. 55; McIntyre v. Ingraham, 35 Miss. 25. Messrs. Dismuke & Baskerville also for appellant. Mr. Lewis McQuown, for appellee: advantage of by demurrer, unless it appears on the face of the pleading that the action is barred, and that the plaintiff is not within any of the savings or exceptions of the statute. Rankin v. Turney, 2 Bush, 555; Still out of the question, and could have constituted no answer to the plea, there being no proof to sustain it. The estoppel was exclusively relied upon." of In Shapley v. Abbott, 42 N. Y. 443, 1 Am. Rep. 548, infra, I. b, where it was held that there was no estoppel, the court said: "In Utica Ins. Co. v. Bloodgood, 4 Wend. 652, the suit was upon a note dated April 28th, 1818. On the 26th of August, 1824, the defendant gave a stipulation as follows: Whereas, the Utica Insurance Company hold my note, dated April 28th, 1818, indorsed by C. C. B. for $1,900; now, therefore, I hereby agree not to plead the statute of limitations in a prosecution for any balance that may be due on said note.' Sutherland, J., writing the opinion of the court, says: "The defendant is estopped by his stipulation from availing himself of the statute of limitations.' This is all that is said about estoppel. There is no discussion, and no authority is cited. It is clear to my mind that the learned judge did not use the word 'estoppel' in the technical sense estoppel in pais. All he meant was, that the defendant was deprived of the benefit of the statute by his stipulation. It was wholly unnecessary to resort to the doctrine of estoppel in pais, as the stipulation, beyond all question, contained a sufficient acknowledgment of the debt to take it out of the statute." A concurring judge said: "The substance of all that has been said by me in this case, if not said by Judge Selden, was implied in or follows from what he did say, in Crawford v. Lockwood, 9 How. Pr. 550, 551; and whatever there be in the opinions in Gaylord v. Van Loan, 15 Wend. 308, and Utica Ins. Co. v. Bloodgood, 4 Wend. 652, inconsistent with what was said by Judge Selden on this question of estoppel in Crawford v. Lockwood, should be regarded as not good law. (See also Kneettle v. Newcomb, 31 Barb. 169.)" The case of Crawford V. Lockwood, referred to in the above quotation, was one involving the question of estoppel arising out of a clause in a promissory note, which attempted to waive the statutory exemp tions from sale under execution, and it was there held that the principle of estoppel in pais could not apply to such a case, as it did not involve a statement of fact. well v. Leavy, 84 Ky. 385, 1 S. W. 590; Wood, Limitation of Actions, §§ 7, 8. One who by his conduct and fraudulent representations induces another to refrain from bringing suit until after the bar of the statute is complete is estopped from relying on the statute. Newton v. Carson, 80 Ky. 309; Renackowsky v. Water Comrs. 122 Mich. 613, 81 N. W. 581; Armstrong v. Levan, 109 Pa. 177, 1 Atl. 204; Wood, Limitation of Actions, 66, note a. The action in this case is not on the The promise to pay, or to retain appellee in appellant's service, but on the tort. promise did not supplant the original cause of action, but is relied on as an estoppel against the plea of the statute. Armstrong v. Levan, 109 Pa. 177, 1 Atl. In Anderson v. Sibley, 28 Hun, 16, it was held that a written stipulation in an action before a justice to submit the matters in difference to an arbitrator, and on the hearing before the arbitrator to waive the statute of limitations, was not an estoppel in pais where the arbitration had been revoked, but it was a sufficient acknowledgment of the debt to remove the bar of the statute. The court said: "It is very clear that the stipulation is not available to the plaintiff as an estoppel in pais, for he was not induced to enter into it by any assertion of fact, misrepresentation, or fraud on the part of the intestate. He is presumed to have known when he entered into the submission to arbitrate that each party had a right to revoke it. Nor is it available in this action as a technical waiver of the statute, for the waiver provided for was, by its terms, confined to the proceedings before the arbitrator." And in Nunn v. Edmiston, 9 Tex. Civ. App. 562, 29 S. W. 1115, it was held that an indorsement four years prior to the suit on a note, "I hereby waive the statute of limitations," was not a renewal of the obligation to pay, and that an agreement to waive the right to plead the statute of limitations was contrary to public policy and subversive of a whole. some statute, and should not be upheld, and that nothing in the pleadings was disclosed that would estop the debtor from setting up the statute. In Emmons v. Hayward, 11 Cush. 48, where a defendant filed an admission under Mass. court of common pleas 41st rule, providing that, to entitle the defendant to the opening and close, where matter in avoidance of the action is specified, he must file a statement in writing, admitting all the facts necessary to be proved by the plaintiff in his opening on the general issue, it was held that he was not thereby estopped from setting up the statute of limitations. The declaration was upon a special promise by defendant to pay certain money on demand. The defendant alleged a demand was made, and that the cause of action accrued more than six years prior to suit. b. Oral. In a majority of cases it is held that the doc 204; Renackowsky v. Water Comrs. 122 Mich. 613, 81 N. W. 581; Hopperton v. Louisville & N. R. Co. 17 Ky. L. Rep. 1322, 34 S. W. 895; Wood, Limitation of Actions, 3d ed. § 66, note a. The obstructions to bringing the suit, referred to in § 2532 of the Kentucky Statutes, which will avoid the plea of limitation, are (1) an act which would hinder the creditor from suing notwithstanding his desire to do so, or (2) delay induced by fraud. Newton v. Carson, 80 Ky. 309; Reid v. Hamilton, 92 Ky. 619, 18 S. W. 770. Hobson, J., delivered the opinion of the court: Appellee, Charles Speakman, was a brakeman in the service of appellant, and while trine of estoppel applies where the creditor, before the debt is barred, is lulled into security by the oral promise of the debtor that he will not avail himself of the statute of limitations, and suit is delayed by reason thereof. It is not necessary that the debtor should intend to mislead, but, if his declarations are such as are calculated to mislead the creditor, who acts upon them in good faith, an estoppel will be created. In some cases the estoppel is put upon the ground that it would operate as a fraud upon the creditor. But in a Mississippi case it has been held that it would be contrary to public policy to avoid the statute by applying the doctrine of estoppel to such agreements, and in New York it has been held that, notwithstanding such a promise, there would be no estoppel unless there was a representation as to the existence of some material fact, which was relied upon, and that the doctrine of estoppel did not apply to a promise not to plead the statute. In accordance with the general rule, a promise by a purchaser at an execution sale to the defendant that he would not be pushed, and that the statutory time would not be insisted upon, where the debtor relied upon such assurance, was held to create an estoppel, in an action to redeem, brought after the time of redemption had expired. Schroeder v. Young, 161 U. S. 334, 40 L. ed. 721, 16 Sup. Ct. Rep. 512. This was held although the assurances were not in writing, and without other consideration than that the debtor was lulled into a false security. And a debtor was held to be estopped from setting up the statute where, before a note was barred, he said that he would not avail himself of the statute, and that a suit need not be brought to prevent the bar of the same. Gay lord v. VanLoan, 15 Wend. 308. The court said: "The agreement not to plead the statute, as respects this note, operated as a fraud upon the plaintiff. Had it not been made, he could have prevented the effect of the statute by commencing his suit. By pleading the statute, the defendant is guilty of bad faith, and, upon general principles, should be estopped from availing himseif of that defense. No one ought to be permitted to disregard his own de thus engaged was injured on July 22, 1899, by reason of a trestle giving way, precipitating the train some 30 feet to the ground below. The giving way of the trestle was due to the fact that the timbers had become rotten. While there is some conflict in the evidence as to the extent of his injuries, the verdict of the jury for $1,500 is not excessive, or palpably against the evidence. The instructions fairly submitted the questions of fact to the jury, and there is but one matter that we deem it necessary to notice at length. The action was not filed until January 5, 1901. The defendant pleaded limitation of one year. The plaintiff replied, in substance, that he had been prevented from bringing the action by the fraud of the defendant, and that it was estopped to plead limitation. We see no objection to liberate, lawful agreement, to the injury of another." But as to notes that were barred at the time the agreement not to plead the statute were made, it was held that the agreement did not operate as a fraud upon the plaintiff by inducing a delay until after the statute attached. And a promise not to take advantage of the statute of limitations pending an arbitration was held to mean that the statute should not run while the arbitration was pending, but not to create an estoppel so that the debtor could never take advantage of the statute. Cowart v. Perrine, 21 N. J. Eq. 101. The court said: "It has been held that a defendant who had agreed not to set up the statute of limitations shall not be allowed to do it; that such agreement, although it does not amount to a new promise, will operate by way of estoppel in cases where the statute had not fully run, and the plaintiff forbore to sue in consequence of the promise. As long as this agree ment really caused the complainant to delay a suit, it would come within the reasons on which an estoppel in pais is founded. .. In this case the defendant refused to meet or go on with the settlement after March, 1860, and in June, 1881, expressly told the arbitrator to whom he had made the promise, that the matter was at an end. It is impossible to believe that the delay to bring suit after this was occasioned by the promise not to set up the statute." In Stearns v. Stearns, 32 Vt. 678, where the defendant pleaded two notes as an offset, and the plaintiff pleaded the statute of limitations, it was held that an agreement by the plaintiff, made before the bar of the statute attached, "that he would not take advantage of the statute of limitations on the notes" need not be pleaded by way of estoppel, but could be shown in evidence under the issue formed by In this case the agree traversing the plea. ment was held to be an acknowledgment of the debt sufficient to take it out of the statute. Where it was claimed that the creditor agreed, before the bar of statute had been completed, to surrender or waive the right to plead the statutory bar of limitations, the court said: If the judgment debtor, for valuable consid the form in which the issue was raised. | paid by appellant for his injuries when time The matter set up in the reply was in avoid- showed what their extent was; and he ance of the plea of limitation made in the should have in its service a permanent posianswer, and was properly pleaded in the tion as long as he lived, or as long as the reply. The court, by an instruction, aptly superintendent remained on the road. These submitted to the jury the truth of these promises were renewed from time to time facts, and, they having found for the plain- until after the end of the year from the tiff, the question is, Were the facts sufficient time he was hurt, and then he was told that to stop the running of the statute? For, they would pay him nothing, and that his while the evidence was conflicting, the ver- claim was barred by limitation. It is dict in favor of the plaintiff is not palpably shown by the proof that the company did against the evidence. The facts referred to keep him on its pay roll from the time he are as follows, the plaintiff's testimony be- was injured until he left its service shortly ing taken as true: Shortly after he was before the bringing of the suit, and paid hurt, and while he was sick, appellant's him full wages for the time he was sick. superintendent represented to him that, if It was charged in the pleading that these he would not sue appellant, his time should representations and promises were falsely be allowed to run on, and his wages paid and fraudulently made for the purpose of until he recovered; also that he would be inducing him to bring no action within the becile sister by note under seal, and, on a request to renew the same before it was barred, said "it would never run out of date," it was held that, although the holder of the note relied upon it and failed to sue, it did not estop the debtor's widow and children from pleading the statute. Cameron v. Cameron, 95 Ala. 344, 10 So. 506. It was contended that these statements estopped his heirs. The court said: "There are several answers to this. It was only a promise not to plead the statute of limitations, and the statute runs against that promise as well as against the bill-single itself." In this case the statute had run against the promise. eration, did in fact, as alleged, agree to waive and surrender the statutory right to avail himself of the bar of limitations, and that the judgment creditor should have the right to enforce the judgment at any time until actually paid, it would be an act of bad faith, as well as a breach of the agreement, on the part of the defendant, representing the judgment debtor, after being indulged beyond the period of limitations, to seek to defeat the execution of the judgment by the plea of the statute. The principle of estoppel would seem to be clearly applicable in such case." Mann v. Cooper, 2 App. D. C. 236. In Barcroft v. Roberts, 91 N. C. 363, a promise by a debtor before the statute had run that no advantage would be taken of the lapse of time, was held in equity to prevent the operation of the statute. The date of the promise is not given, but the exception to the referee's finding, sustained by the trial court, claimed that there was no evidence of any promise within three years prior to bringing the action. In Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555, three of the judges held that a debtor orally promising, before the debt was barred, to waive the statute of limitations in consideration of the creditor not suing, was estopped from relying on the statute. Another justice concurred with the reversal on the ground that the action was controlled by the statute of ten years, which time had not elapsed. Three of the judges held there was no estoppel. In Jared v. Vanvleet, 13 Ill. App. 517, it was held that an agreement not to set up the statute of limitations, made in a certain suit, could not be extended beyond the matter properly cognizable in that suit, and that in the second suit the matters that were not embraced in the former suit were not included in that agreement, and there was no estoppel created that prevented a reliance upon the statute in the second action. And in Trask v. Weeks, 81 Me. 325, 17 Atl. 162, where, after the statute of limitations had taken effect, the debtor agreed to waive the statute, it was held that the contract could not operate as an estoppel, as there was no evidence that the plaintiff, in consequence of it, had been induced to change his position so as to lose any legal rights by delays or otherwise. And where a party was indebted to an im | The In Garruth v. Paige, 22 Vt. 179, which held that a protestation by the defendant as to liability for a debt on a trial before a justice, with a statement that "he would not take advantage of the statute of limitations," was not sufficient to avoid the operation of the statute, the court said: "The counsel for the plaintiff rely upon Paddock v. Colby, 18 Vt. 485, as an authority for construing the defendant's admissions into a waiver of the statute bar. language of the defendant in that case to the officer was that he had assured the plaintiff, that he would not take advantage of the stat ute of limitations.' This language, unlike that in the present case, was unconditional and unaccompanied with any protestation that the claim was unjust. If it could have been inferred in that case that the assurance of Colby to Paddock, that he would not take advantage of the statute of limitations, had been made before the statute had become a bar, and that Paddock had, in consequence, allowed the six years to run before bringing his suit, the defendant might, perhaps, have been very properly estopped from recalling his assurance, upon the common doctrine, that admissions, which had been acted upon, are conclusive upon the party making them. It should also be observed that the language of the court in that case upon the question in regard to the statute of limitations is very brief; and that any decision upon that question seems unnecessary; the defendant in the case being held not liable for the claim upon another ground." In Ailen v. Webster, 15 Wend. 289, the plaintiff insisted that a promise by the debtor that he would not plead the statute of limitations operated as an estoppel, but the court held year, and that he was induced by them not | fendant be estopped, by conduct like this, to bring the action, believing that the promises were made in good faith, and would be kept. Appellee testified that shortly before the year ran out the promises were renewed, and he was requested to get up proofs for the payment of his claim, which he did, and submitted to the superintendent. These proofs are produced, but the superintendent says they were gotten up for a different purpose. from relying on the lapse of time during which, by such means, it prevented the bringing of the action? Section 2532, Ky. Stat., is as follows: "When a cause of action mentioned in the 3d article of this chapter accrues against a resident of this state, and he, by departing therefrom, or by absconding or concealing himself, or by any other indirect means, obstructs the prosecution of the action, the time of the continuance of such absence from the state or obstruction shall not be computed as any part of the period within which the action may be commenced." In Newton v. Carson, 80 Ky. 309, about the time the petition was filed the surety in a note went to the plaintiff, and told him that, if he would not sue on the note, and save the defendant any fur It is earnestly insisted for appellant that a promise to pay can only revive a contract debt, and that an acknowledgment of liability for a tort that is barred by limitation cannot revive it. This is true, but the promises and representations here relied on were made before the claim was barred by limitation, and the question is, May the dethat that point was not before the appellate | lied upon the promises of the defendant, which court, as the plaintiff did not raise any question on that subject in the court below. In Holman v. Omaha & C. B. R. Co. 110 Iowa, 485, 81 N. W. 704, which was an action against a railroad company for injuries caused by its negligence, the plaintiff claimed that the defendant was estopped from pleading the statute of limitations by reason of negotiations with its superintendent for a settlement, and that the defendant, through its agent, further agreed that it would waive the statute. It was held that the plaintiff could not recover without showing that the defendant had waived the statute of limitations, or been guilty of such conduct as estopped it from pleading the same. The instructions were that, if the agent had no authority to settle plaintiff's claim, the estoppel would count for nothing. The court said: Finding, as we do, that there was no reversible error in sustaining the motion because of failure of plaintiff to prove the authority of Dimmock, the other question regarding the validity of a promise to waive the statute, made before the action is fully barred, need not be determined. As has been said, the authorities on this question are in conflict, although the greater number seem to hold the promise good, either as an acknowledgment of the debt, or by way of estoppel, or as a conditional promise to pay in case the plaintiff proves its claim." 66 But in Crane v. French, 38 Miss. 503, an agreement by a debtor, made before the bar had attached to a note, and after its maturity, that the statute of limitations should not run on the note on the consideration that the holder would not then bring suit, was held not to create an estoppel, on the ground that it was in violation of the policy of the law, and void. The court said: "It would seem that no man can bind himself by estoppel not to assert a right which the law gives him on reasons of public policy." And in Shapley v. Abbott, 42 N. Y. 443, 1 Am. Rep. 548, where the debtor, before a note was outlawed, orally agreed that he would not plead the statute of limitations, it was held that there was no estoppel. The court said: "In this case the fact that the note would outlaw to was equally known both parties. The plaintiff did not rely upon the statement of any fact made by the defendant, but he re the latter saw fit to break. If a creditor should present his claim to his debtor, not knowing precisely when it fell due and when it would be outlawed, but believing that it was about to outlaw, and the debtor, professing to know when it fell due and when it would outlaw, should represent that it had a month longer to run, and request the creditor to delay, and the creditor should thereupon delay the month, when in fact the claim had but one week to run, the debtor would be concluded by the statement he had made, and would be estopped from claiming that the claim was outlawed before the expiration of the month. Here would be the representation of a fact upon which the creditor, not knowing the truth, relied. As another illustration of the rule, as I claim it to be: Suppose I meet the maker of a note which I hold, and we both know that it is about to outlaw, and I request him to give a written acknowledgment, renewing it, and to leave it with my banker, and he promises to do so; I afterward see him, before the note is outlawed, and he says he has done so, and I, relying upon this, permit the statute to run. But it turns out that he did not leave the written acknowledgment. Here, again, would be the representation of a fact; and, in a suit upon the note, the maker would be concluded by his representation, upon which I relied, and would be estopped from denying a written acknowledgment." II. Other agreements that cause delay. An agreement in accord and satisfaction, or for an arbitration and award, or for a reference, or an agreement that a claim is to abide the issue of a suit on another claim, or any agreement whereby the creditor is lulled into security and thereby delays action, is held to create an estoppel, and to bar the debtor from relying on the statute. This is on the ground that, where the act or promise of one man causes the other to do something which he otherwise would not have done, or forbear to do something which he otherwise would have done, the other is estopped from taking advantage of the act or omission caused by his This rule was held apown act or promise. plicable in CHESAPEAKE & N. RY. v. SPEAKMAN. But an indefinite extension of the time to re ther cost, he would, during the next term And deem is held not to create an estoppel. 'In the latter case the court said: "If the plaintiff, by the words and conduct of its general manager, caused the defendant to believe that it would accept his claim in settlement of its own, and thereby induced him to act on that belief, and so to take no further steps toward enforcing collection of his claim by suit or otherwise, then, upon every principle of right, it ought to be held estopped to take advantage of the delay it occasioned by pleading the statute of limitations." And where an arbitration and award were continued from time to time, and afterwards the award was held invalid by the court, and an action was brought on one of the claims, it was held that it was a question for the jury whether plaintiff was prevented from commencing suit while the action was pending before referees; and, if this was caused by the defendant's agreement to refer, they were topped from pleading the statute of limitations. Davis v. Dyer, 56 N. H. 143. es fixed by the statute, the defendant may be same And the was held in the similar case of Haymore v. Yadkin County, 85 N. C. 268; the court saying: "Courts of equity will prevent a party from setting up an unconscientious defense at law, acting by means of an injunction to that end, when the courts of law and courts of equity are separate and distinct tribunals, but directly in the case where the two have been consolidated as with us." So, an agreement that the decision in a pending action will control the liability of another claim was held to create an estoppel, where the plaintiff, in consequence of such agreement, delayed the bringing of the action on a second note until after the decision in the action upon the first note, at which time the statute of limitations had attached. Brookman v. Metcalf, 4 Robt. 568. The court said: "It seems to me, upon the doctrine of equitable estoppel, or estoppel in pais, the defendant ought not to be allowed to disregard his engagement, and set the statute up as a defense. The offer of the defendant was made with the intention of influencing the plaintiffs in reference to their contemplated suit upon the second note. The plaintiffs, acting under such influence, suspended all proceedings, and continued passive until the decision of the first action. No one can doubt, and so the jury found, that the suspension of action upon the second note was in consequence of the promise of the defendant to abide by the first suit." It In National Bank v. Speight, 47 N. Y. 668 an agreement in writing was made by the parties to refer a claim against an estate before An acquiescence by a board of county com- the short statute of limitations applied. missioners that a claim should abide the result was held to have been referred for the purof a pending suit on a similar claim was held pose of avoiding the statute of limitations, and to create an estoppel, making it against equity that the principle of equitable estoppel applied. and good conscience to plead the statute of (This is from the syllabus of the case, as the limitations. Daniel v., Edgecombe County, 74 opinion of the court is not given in the report.) The decision of the general term, as N. C. 494. The court said: "The assent of shown by the printed case of the court of apdefendants to this proposition was equivalent peals record, discloses that there was some deto an agreement that the time which should lay in the reference on account of failure to thereafter elapse until the trial and determinasoon a referee, but as agree on the six tion of Austin's suit should not be counted. months' statute applied, the executor then Austin's suit was never tried, but was comwrote that he "had offered a reference, and promised by the parties to it. The plaintiff that the claim was barred by the statute." was entitled to have until the next regular The general term says: "There was, theremeeting of the commissioners after he was fore, no reason why an action should be cominformed of the compromise before he could menced upon a claim which both parties agreed as |