entry or defense; but such action may be commenced, or entry or defense made, after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, or entry or defense made after that period. In Fogal agt. Pirro, 10 Bosw., 100, General Term, December, 1862, BARBOUR, J., it was decided, that as against an action of ejectment by the remainderman, the statute of limitations does not begin to run in favor of a person in possession under the termor, till the determination of the precedent estate. CHAPTER III. The time of commencing actions other than for the recovery of real property. 93. Within two years. 94. Within one year. 95. When cause of action accrrued, in an action upon a current account. 96. Actions for penalties, &c., by any person who will sue, when to be brought. 97. Actions for relief, not before provided for. 98. Actions by the people, subject to the same limitation. $89. Periods of limitation prescribed. The periods prescribed in section seventy-four for the commencement of actions other than for the recovery of real property, shall be as follows: 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: $69. [1848.] The periods prescribed in section 67, for the commencement of actions other than for the recovery of real property, shall be as follows: § 90. Within twenty years. Within twenty years: 1. An action upon a judgment or decree of any court of the Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: $69. [1848.] The periods prescribed in section 67, for the commencement of actions other than for the recovery of real property, shall be as follows: $90. Within twenty years. (Same as $70 in 1848.) Within twenty years: 1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States. 2. An action upon a sealed instrument. Questions. 1. Q. Does a justice's judgment, on filing a transcript, stand on the same footing as judg ments of courts of record, so far as the statute of limitations is concerned? 2. Q. Does the statute of limitations apply to a justice's or marine court judgment, recovered since the Code, on filing a transcript, after six years from the rendering of the judg ment? 3. Q. Does the lapse of six years from the maturity of a note given with a mortgage of real estate, as collateral security, operate to bar the foreclosure of the mortgage? 4. Q. What evidence will authorize the presumption of payment of a judgment from the lapse of twenty years from its rendition? 1. Q. Does a justice's judgment, on filing a transcript, stand on the same footing as judgments of courts of record, so far as the statute of limitations is concerned? A. The answer to this question will be found under section 71, Q. 3. 2. Q. Does this statute of limitations apply to a justice's or marine court judgment, recov ered since the Code, on filing a transcript, after six years from the rendering of the judgment? A. In Delevan agt. Florence, 9 Abb., 277, N. Y. C. P., Special Term, April, 1858, BRADY, J., it was decided, that the Revised Statutes provided that all actions upon judg ments rendered in any court not being a court of record, should be commenced within six years next after the cause of action accrued, and not after. The Code repealed that provision, but provided that such repeal should not extend to actions already commenced, or to cases where the right of action had already accrued, and that the statutes then in force should be applicable to such cases, according to the subject of the action, and without regard to the form. Therefore, where a justice's judgment was rendered in January, 1849, and a transcript thereof was filed in May, 1857, in the court of common pleas, it was held, on an application to the latter court, for leave to issue execution, after filing the transcript, that the cause of action accrued after the passage of the Code, and leave to issue execution should be granted under the Code. In Conger agt. Vandewater, 1 Abb., N. S., 126, General Term, May, 1865, CLERKE, J., it was decided, that under the Code, the period limited for the commencement of actions upon a judgment or decree in any court, is twenty years, and this includes judgments in the marine and justices' courts. 3. Q. Does the lapse of six years from the maturity of a note given with a mortgage of real estate, as collateral security, operate to bar the foreclosure of the mortgage? A. In Pratt agt. Huggins, 29 Barb., 283, General Term, May, 1859, HOGEBOOM, J., it was decided, that where a debt is secured by a mortgage upon real estate, and a promissory note instead of a bond, the debt may be enforced by foreclosure of the mortgage, after the expiration of six but before the expiration of twenty years from the time when the debt became due. The lapse of six years since the maturity of the note, without any subsequent recognition or acknowledgment of the debt, is not conclusive evidence that the mortgage has been paid. 4. Q. What evidence will authorize the presumption of payment of a judgment from the lapse of twenty years from its rendition! A. In Henderson agt. Cairns, 14 Barb., 15, General Term, June, 1852, MITCHELL, J., it was decided, that the facts stated in a sheriff's return on an execution that he had levied and paid to the plaintiff part of the debt, and that the defendant had no property to pay the residue of the judgment; are sufficient to repel the presumption of payment, arising from the fact that more than twenty years have elapsed since the judgment was rendered, where the judgment was obtained before the Revised Statutes took effect. In Waddell agt. Elmendorf, 6 Seld., 170, April, 1854, JOHNSON, J., it was decided, that the provision of the Revised Statutes with regard to the presumption of payment of prior judgments (2 R. S. 301, § 46) applies to such judgments the rule of presumption which was in force as to scaled instruments, immediately before the passage of the act, and not the new rule prescribed for sealed instruments by section 48 of the same statute. The presumption of payment of a judgment, recovered prior to the enactment of the Revised Statutes, may therefore be repelled otherwise than by proof of payment, or of a written acknowledgement. Evidence showing the embarrassment and insolvency of the judgment debtor is competent as tending to rebut the presumption of payment of a judgment recov ered in 1810. § 91. Within six years. Within six years: 1. An action upon a contract, obligation or liability, express or implied; excepting those mentioned in section ninety. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon real property. 4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract; and not hereinafter enumerated. 6. An action for relief, on the ground of fraud; in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud. 1. Question. Has this section been amended since its passage in 1848? Answer. It has in 1819 which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: $71. [1848.] Within six years: 1. An action upon a contract, obligation or liability, express or implied; excepting those mentioned in section seventy. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon real property. 4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated. 6. An action for relief, on the ground of fraud; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud. Questions. 3. Q. What acknowledgement of the debt and promise to pay, made to a third person, is insufficient to take the claim out of the statute of limitations? 4. Q. Does a devise of real estate to an executor for the payment of debts generally or a power in trust given to an executor for that purpose, prevent the running of the statute of limitations against debts which were due prior to the decease of the testator? 5. Q. When must an action be brought against a special agent intrusted with money, who neglects to pay it over to his principal? 6. Q. To what actions of equitable cognizance, does the six years statute of limitations apply? 7. Q. When does the six years statute of limitations commence running on a premium note given as and for capital stock of a mutual insurance company? 8. Q. Is the six years statute of limitations, a bar to an action on a promissory note by the payee against the maker, where after six years from the time the note became payable, the payee paid the holder of the note and repossessed himself of it? 9. Q. When does the six years statute of limitations begin to run on a demand for services rendered under a yeneral employment and retainer, where no time is fired either for the employment or the payment of the person performing the service? 10. Q. Does the six years statute of limitations begin to run against an action for the possession of personal property (formerly trorer) from the time of the conversion? 11. Q. Does the six years statute of limitations apply to a debt of an administrator established by a surrogate's decree? 12. Q. Are administrators, who are sued on a joint and several note, with others, to be regarded, in respect to the statute of limitations, as if they had been sued separately? 13. Q. What is the effect of a limitation in a policy of insurance, requiring the insured to sue, if at all, in twelve months? 14. Q. Within what time must an attorney bring an action to recover his costs upon a judgment perfected by him? 15. Q. When does an obligor of a bond for the loan of money to him, without interest, put it in the power of the obligee to postpone the demand of payment of the principal at his pleasure, and thus prevent the statute of limitations from running until such demand? 16. Q. Can an attachment issue against an attorney for non payment of moneys collected by him, after the remedy by action is barred by the statute of limitations? 17. Q. When does the statute of limitations commence running against a demand of the owner, for the price of goods sold on commission by his factor? 18. Q. How does the statute of limitations affect a liability for the use of another's property for ten years, where no compensation is stipulated? 19. Q. Can the statute of limitations be interposed in a surrogate's court; and what time will constitute a bar to proceedings to compel an executor to pay a legacy? 20. Q. Does the insurable interest of a creditor in the life of his debtor, continue, although the statute of limitations would have been a bar, if pleaded before the debtor's death? 21. Q. When is a creditor's action barred by the statute of limitations? 22. Q. When does the statute of limitations begin to run upon a right of action to recover a deposit of money? 3. Q. What acknowledgement of the debt and promise to pay, made to a third person, is insufficient to take the claim out of the statute of limitations? A. In Bloodgood agt. Bruen, 4 Seld., 366, June, 1853, GARDINER, J., it was decided, that to avoid the operation of the statute of limitations by a new promise, it should be averred in pleading, that it was made within the time limited by the statute. A general allegation, that the debt had been repeatedly acknowledged is not enough. An acknowl edgement, in order to raise the presumption of a promise to pay a debt barred by the statute, must be unconditional, and such a one as implied a willingness to pay it. It must also be made to the holder or some one acting for him, and not to a stranger. An acknowledgement of the indebtedness is not of itself a promise, to avoid the statute, but under certain circumstances, evidence from which a promise may be inferred. But when made in answer to a bill in equity filed by a third person, or drawn out from the debtor, when testifying as a witness, no promise can be implied from it. A surviving partner, who is also the executor, of his deceased partner, cannot in either relation, by a new promise revive against the deceased partner's estate a debt of the copartnership. The equitable right to an action against a deceased partner of a firm, where the surviving partner is solvent at his death, and then becomes insolvent, arises at the time the survivor becomes insolvent, and is barred in ten years therefrom. In Wakeman agt. Sherman, 5 Seld., 90, October, 1853, GARDINER, J., it was decided, that a statement by a debtor, after the debt was barred by the statute of limitations and an insolvent's discharge, that he felt in honor bound to pay the debt, and would pay it, and at the end of one year, if successful in business, he would commence paying it, is a conditional promise to pay the debt, and performance of the condition must be shown, to authorize a recovery on such promise. Evidence of ability on the part of the debtor to pay, not having reference to the years business referred to in the promise, is neither sufficient nor competent to show the condition performed. A promise not made to the creditor, nor to any one acting in his behalf, is not sufficient to revive a debt so barred. 4. Q. Does a devise of real estate to an executor for the payment of debts generally or a power in trust given to an executor for that purpose, prevent the running of the statute of limitations against debts which were due prior to the decease of the testator? A. In Martin agt. Gage, 5 Seld., 399, December, 1853, GARDINER, J., it was decided, that a devise of real estate to an executor for the payment of debts generally, not specifying particular debts, or a power in trust given to an executor for that purpose, does not prevent the running of the statute of limitations against debts which were due prior to the decease of the testator. The presumption of payment arising under the statute of limitations, from lapse of time, is not that the payment was made at the expiration of the time fixed by the statute as a bar, but at some prior indefinite time, or when the obligation became due. An executor, cited to account before a surrogate, may avail himself of the statute of limitations in bar of any claim presented against the estate, in the same manner as in a suit at law or in equity upon such claim. 5. Q. When must an action be brought against a special agent intrusted with money, who neglects to pay it over to his principal? 4. In Hickok agt. Hickok, 13 Barb., 632, General Term, September, 1852, SHANKLAND, J., it was decided, that where a person, intrusted with a note against a third person, by the owner, for collection, receives the money thereon, but neglects to pay it over, an action will lie against him, without a previous demand. And if suit is not brought within six years, the statute of limitations is a bar. Such a person does not stand in the relation of a trustee, so as to deprive him of the benefit of the statute. 6. Q. To what actions of equitable cognizance, does the six years statute of limitations apply? A. In Mayne agt. Griswold, 3 Sandf., 481, General Term, April, 1850, MASON, J., it |