making the payment, by his associates. The right of action upon a promissory note, accrues when the note is payable; and where a note was payable before the Code took effect, an acknowledgment or promise, in order to take the case out of the statute of limi tations, need not be in writing. The statute of limitations does not abrogate a debt by the lapse of the limited time. The action, in cases of subsequent recognition, is brought upon the original contract, and the complaint counts uponthat only.

In Winchell agt. Hicks, 18 N. Y. R., 559, March, 1859, ALLEN. J., it was decided that a joint and several promissory note, made by a principal and three sureties, became due before the Code. Five years afterwards, the holder, calling upon two of the sureties for payment, was referred by them to the principal, who was informed of such reference and made a payment: Held, such an acknowledgment of liability as to arrest the running of the statute of limitations against the two sureties. Neither the acknowledgment nor the payment affects the right of the third surety, who took no part in the transaction. Since the decision of the court of appeals in the cases of Van Keuren agt. Parmalee, (2 Comst. 527,) Shoemaker agt. Benedict, (1 Kern, 185,) and Reed agt. McNaughton, reversing the decision of the supreme court, reported in 15 Barb., 168, the following propositions in relating to a defence arising under the statute of limitations, may be consid ered as established: 1.-That the action must be sustained upon the new promise, though the original contract is the cause of action, and the complaint counts upon that as the ground of recovery. 2. That to revive or renew the debt there must be either an express promise to pay, or an acknowledgment of its existence from which a new promise may be implied. 3.-That this acknowledgment or promise must be made by the party to be charged or by his authorized agent. 4.-That there is no material agency between joint debtors, by reason of their joint contract, which will authorize one to act for and bind the others, so as to vary their hability.

In Munroe agt. Potter, 22 How. 49, General Term, November, 1860, MORGAN, J., it was decided that where a surety who is a joint maker of a promissory note with the principal, requests the principal to make a payment of interest on the note, and the principal makes the payment, which is indorsed on the note; the act is to be regarded as the acknowledgment of the debt by both parties, and sufficient to take the case out of the statute of limitations. It seems that the Code does not affect such an acknowledgment, although the case arises under it.)

In Payne agt. Slate, 39 Barb., 634, General Term, May, 1863, BROWN, J., it was decided that a party who makes a promise or an acknowledgment, either orally or in writing, or by payment of principal or interest which is to have the effect to secure a debt from the force of the statute of limitations, must be the party to be charged, or be duly authorized by the party to be charged. One copartner cannot, after the dissolution of the firm, bind his copartner by a new promise, or revive a debt barred by the statute of limitations, by a promise, or by a payment of principal or interest, made either before or after the lapse of the six years mentioned in the statute. In respect to their creditors, copartners, after the dissolution, are joint debtors, and nothing more. What the joint makers of a promissory note may not do to enlarge, prolong or continue existing liabili ties, or to create a new one in regard to the debt, copartners after dissolution, may not do.

5. Q. Where a justice's judgment has become barred by the statute of limitations, will it be so revived by a new promise of payment, as that an action of debt may be maintained upon

it ?

A. In Carshore agt. Huyck, 6 Barb., 583, General Term, July, 1849, HARRIS, J., it was decided that after a justice's judgment has become barred by the statute of limitations, a new promise of payment will so revive it that an action of debt may be maintained upon it with the same effect as before the statute had attached. Where the operation of the statute of limitations is avoided by a new promise, the old demand and not the new promise, must be the foundation of the action. As the new promise does not, as in the case of a promise to pay a debt discharged under the insolvent act, create a new liability upon a new contract, but merely removes the presumption of payment which the statute of limitations raises, it is immaterial to whom the promise is made. Making partial payments is sufficient to take the demand, upon which such payments are made, out of the operation of the statute.

In Waltermire agt. Westorer, 4 Kern 19, June, 1856, SELDEN, J., it was decided that the statute of limitations which bars an action on a justice's judgment after six years, does not extinguish it or destroy its lien where it has been docketed in the county clerks office. Snch docketing renders it a lien on real estate co-extensive in time, with judg ments recovered in the court of common pleas. And the Code declares that from the time of the docketing in the county clerk's office, "the judgment shall be a judgment of the county court," (§§ 63-90.)

6. Q. Does a conditional promise to pay,at a future time, operate to revive a debt barred by the statute of limitations?

A. In Watkins agt. Stevens, 4 Barb., 168, General Term, September, 1848, PAIGE, J., it was decided that a promise to pay money at a future day, is just as absolute and unconditional, as a promise to pay immediately, or on demand. Consequently where the defendant said that he owed the plaintiffs $700, and intended to arrange his business and pay them that fall, or winter, as soon as he could; held, that the acknowledgment of the debt was explicit and unconditional, and a direct admission of a previous subsisting debt, although the time of payment was qualified and limited by the expiration of the ensuing winter, and when that time expired, the acknowledgment or promise became unqualified and unconditional, and was sufficient to revive the remedy for the recovery of the debt, barred by the statute of limitations.

In Creuse agt. Defiganiere, 10 Bosw., 122, General Term, January, 1863, MONELL, J., it was decided that a letter written by a debtor, in effect acknowledging the existence of an indebtedness, and proposing a compromise, but distinctly indicating an unwillingness to pay, and a determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out of the statute of limitations. A new promise cannot be raised by implication from any act of an agent of the debtor, whose only authority is to effect a compromise upon specified terms. It seems, that an agent cannot bind his principal by an implied new promise made within six years before action, where the authority of the agent was given more than six years before the action.

7. Is a promise made since the Code took effect, to pay a debt, barred or not barred by the statute of limittaions before the Code took effect, required to be in writing to take the case out of the statute of limitations?

A. In Wadsworth agt. Thomas, 7 Barb., 445, General Term, November, 1849, GRIDLEY, J., it was decided that a promise made since the Code of 1848 took effect, to pay a debt which was barred by the statute of limitations before the Code went into operation, will not revive the cause of action, unless such promise be in writing, subscribed by the party to be charged thereby in pursuance of the provisions of that Code.

In Gillespie agt. Rosekrants, 20 Barb., 36, General Term, May, 1855, HARRIS, J., it was decided that the 90th section of the Code of 1848, which is the 110th section of the present Code, merely provided "that in cases where the time for commencing an action on contract, should have expired, the cause of action should not be deemed to have been revived by an acknowledgment or new promise, unless the same should be in writing &e. The provision had no reference to a case where the promise relied upon to take the case out of the statute of limitations had been made before the debt had become barred. But the 110th section, as amended in 1849, is made applicable to every case of acknowledg ment or new promise, except in cases where a right of action was in existence at the time the Code took effect as a law. The 73d section declares that the title of the Code in which the 110th section is found shall not extend to cases where the right of action has already accrued.

In The Glen Cove Mutual Ins. Co., agt. Harrold, 20 Barb., 298. General Term, June, 1855, S. B. STRONG, J., it was decided that rights of action which had accrued previous to the time when the Code was enacted and which then existed, are expressly excluded (by original sec. 66) from the operation of the section which requires that a new promise, in order to take a case out of the statute of limitations, shall be in writing.

In Esselstyn agt. Weeks, 2 Kern., 638, September, 1855, GARDINER, J., it was decided that a debt which was barred by the statute of limitations when the Code took effect, is not revived by a verbal promise to pay it, made after that time.

In Winchell agt. Bowman, 21 Barb., 448, General Term, April, 1856, S. B. STRONG, J., it was decided that the right of action upon a promissory note, accrues when the note is payable; and where a note was payable before the Code took effect, an acknow!edgment or promise, in order to take the case out of the statute of limitations, need not be in writing.

In Hope agt. Bogart, 1 Hilt., 545, Special Term, April, 1858, HILTON, J., it was decided that no acknowledgment or promise is sufficient evidence of a new or continuing contract, to take a case out of the operation of the statute of limitations, unless contained in some writing signed by the party to be charged thereby. The effect of the enactment of the provision in the Code of 1849, requiring such promise to be in writing, is to establish a new rule of evidence for all cases, where the action is brought after the period limited by statute.

In Van Allen agt. Feltz, 32 Barb, 139, General Term, May, 1859, HOGEBOOM, J., it was decided that the meaning of the 73d section of the Code, in declaring that the title relative to the time of commencing actions should not extend to actions already commenced, or to "cases where the right of action had already accrued," was to except from the operation of the section (110) requiring the new promise or acknowledgment to be in writing, only those cases where an action had been already commenced, or should be thereafter commenced upon a then existing and effective cause of action, which should, of itself and without the aid of any subsequent promise or acknowledgment, be sufficient to support the action. It is the new promise or acknowledgment, which gives vitality to the cause of action, and it forms the substance of the right of action prosecuted. Hence,

when a promise or acknowledgment, made before the statute of limitations had run, but since the Code took effect, is relied on as taking the case out of the statute of limitations, it must be in writing.

"Per Contra," In Coe agt. Mason, 41 Barb., 612, April, 1864, General Term, FOSTER, J., it was decided that section 110 of the Code of Procedures, which requires that a promise, to take a case out of the operation of the statute of limitations, shall be in writing, is not applicable to cases where the right of action had accrued previous to the adoption of the Code. Accordingly, held, that parol promises made in 1851 and 1856, to pay a debt which existed and was in full force at the time the Code took effect in 1848, were sufficient to take the case out of the statute of limitations; the case coming within the exception of section 73 of the Code. It was the intention of the legislature to confine the operation of section 110 of the Code to new liabilities, and not to include preexisting ones which had been already barred by the statute. The "right of action," spoken of im the 73d section of the Code, which excepts from the operation of section 110 actions already commenced, and cases "where the right of action has already accrued," means the right of action upon the original obligation and not the right of action upon the new promise. (Van Allen agt. Feltz was reversed in Court of Appeals, September Term, 1864. See 27 Hour., C01.)

8. Q. When is an acknowledgment or promise to pay the debt, made to a third person insufficient to take the claim out of the statute of limitations?

A. The answer to this question will be found under § 91 Q. 3.

9. Q. Can the decree of a surrogate, establishing the indebtedness of the intestate's estate, on a promissory note, and ordering a pro-rata payment thereon, deprive the administratrix of the benefit of the statute of limitations in an action against her for the balance?

A. In Arnold agt. Downing, 11 Barb., 556, General Term, January, 1852, SHANKLAND, J., it was decided that a decree made by a surrogate, establishing the indebtedness of an intestate's estate, upon a promissory note given by the decedent, and ordering a pro-rata payment thereon, out of the assets, does not amount iu law to a promise, on the part of the administratix, to pay the balance; so as to deprive her of the benefit of the statute of limitations. In order to take a demand out of the statute of limitations, by a part payment, it must appear that the payment was made on account of the debt for which the action was brought. And it must further appear that the payment was made as part payment of a larger debt. To make a part payment evidence of a promise to pay the balance, it must be voluntary, on the part of the debtor; and it must occur under such circumstances as are consistent with an intent to pay such balance.

10, Q. What evidence is proper to rebut the presumption of payment of a sealed instrument or judgment after the lapse of 20 years?

A. In Waddell agt. Elmendorf, 12 Barb., 585, General Term, February, 1852, EDMONDS, J., it was decided that the provisions of the Revised Statutes respecting the presumption of payment of judgments, after the lapse of 20 years, which declare that such presumption of payment may be repelled by proof of payment of some part of such judgment, or of a written acknowledgment of a right of action thereon, within that period, (2 R. S, 301,) were not intended to have a retroactive effect, so as to embrace judgments recov ered prior to the passage of the Revised Statutes. In regard to past judgments, the law was intended to remain untouched, but a new rule was established as to future judg ments. Accordingly, Held, that in an action upon a judgment recovered in the year 1810, the presumption of payment arising from lapse of time might be rebutted by any evidence showing a continuing indebtedness.

In New York Life Insurance and Trust Co. agt. Covert, 29 Barb., 439, General Term, June, 1859, S. B. STRONG, J., it was decided that a presumption of payment is not like an actual payment, which satisfies the debt as to all the debtors; it operates as a payment only in favor of the party entitled to the benefit of the presumption. The presumption of payment of a mortgage, arising from the lapse of over twenty years from the time when the mortgage money became due, will not be repelled by proof of a payment made by the mortgagor after he has sold and conveyed the mortgaged premises to another person; so far as the purchaser, and those claiming under him, are concerned. Where a party relies upon the presumptior. of payment, arising from lapse of time, the proper mode of making the defense is to allege payment, in his answer.

11. Q. What is a sufficient signing of an instrument, to save a claim from the statute of limitations under this sectiou?

A. In Rowe agt. Thompson, 15 Abb., 377, N. Y. Common Pleas, General Term, January, 1863, BRADY, J., it was decided that where T., a debtor, procured his creditors, to sign the following instrument: "We, the creditors of T., agree not to sue or molest him for his indebtedness, or the debts owing to us by him, for two years;" was equivalent to an agreement not to plead, the two years, as a part of the statute of limitations, and operated to extend the limitation of the statute for two years. It is a sufficient signing of an instru

ment, calculated to save a claim from the statute of limitations, under section 110 of the Code, if it is evident from any part of the instrument that the debtor named in it has given to it his assent. It is compent, in such case, to show by a witness that such instrument referred to the claim in suit.

12. Q. Is it requisite that the acknowledgment should express an intention to pay the debt? A. In The Commercial Ins. Co., agt. Brett, 44 Barb., 489, General Term, September, 1865, INGRAHAM, P. J., it was decided that an acknowledgment, to be sufficient to take a case out of the statute of limitations, must not only be an admission of the existence of the debt, but in addition thereto, a recognition of a liability to pay, in such a mode as will authorize the inference of a new promise. The makers of promissory notes, being sued thereon, put in an answer admitting the making of the notes, and claiming that they were premium notes; that a loss had been sustained under the policy; and that the notes should be paid out of the insurance moneys. Held, that this was not a sufficient acknowledgment to revive a debt barred by the statute of limitations; there being no admission of present indebtedness, or of any willingness to pay the notes, from which a promise to pay might be inferred. An answer in the cause being a compulsory statement under oath, the occasion when, and the circumstances under which, statements in it are made, repel any implication of a promise to pay the demand, from any acknowledgment therein.

In Loomis agt. Decker, 1 Daly, 186, General Term, November, 1861, HILTON, J., it was decided that to revive a debt barred by the statute of limitation, where no promise to pay is shown, but one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable, and willing to pay; and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Where the debtor, in a letter to his creditor, said, “I don't recollect when the bill was made; but if it is all right, I will make it satisfactory," and added that he had certain railroad bonds, which he hoped would be accepted as payment, "as money was out of the question ;"-Held, sufficient to take the case out of the statnte. It is the province of the court, sitting as a jury, to find, as a matter of fact, whether a new promise, under the circumstances, might fairly be implied, and a finding by the court, in this respect, like the verdict of a jury, must be deemed final.

In McNamee agt. Tenny, 41 Barb., 495, General Term, May, 1864, LEONARD, J., it was decided that in order to take a case out of the operation of the statute of limitations, an acknowledgment, need not express any intention to pay the debt, an intention to pay is to be presumed. And where the debtor acknowledges the existence of the debt, in writing, the provisions of the law are met, and the statute of limitations will not attach. Where there is no proof that other demands existed, to which the acknowledgment of the debtor might apply, the presumption is that it applied to the demand proven.

13. Q. Is a general assignment for the benefit of creditors, such an acknowledgment or promise in writing by the assignor, as takes an assigned note of the assignor, out of the operation of the statute?

A. In Trustees of the Estate of Kohnstamm, agt. Foster, 28 How., 273, Special Term, January, 1865, JAMES, J., it was decided that a general assignment for the benefit of credi tors, is such an acknowledgment or promise in writing by the assignor, as under the provisions of the Code, takes a note of the assignor, the payment of which is provided for in the assignment, out of the operation of the statute of limitations. This assignment contains all the elements required by this section; it acknowledges the debt in writing, and is signed by the party to be charged. The section does not define what the writing shall be, it merely requires the acknowledgment or promise to be contained in some writing, signed by the party charged, and it can as effectually be made in a general assignment for the benefit of creditors, as in any other instrument. (Affirmed in court of appeals.--ED.)

What is the result of the decisions under this section?

1. (3 Q.) An assignee of an insolvent debtor, is not an agent authorised to renew a debt by partial payment or otherwise, so as to take it out of the statute of limitations as against the assignor.

2. (4 Q.) An acknowledgment and promise to pay made by one partner, after the dissolution of the partnership, will not revive a debt against the firm which is barred by the statute of limitations.

3. A partial payment made by one of the makers upon a joint and several promissory

note, before the statute of limitations has barred an action upon it, and within six years before suit brought, does not affect the defense of the statute of limitations as to the others. (This authority is doubted, see the following—ED. )

4. Where two joint makers of a note, specifically request the holder to apply to an associate maker for payment of interest thereon, and the latter makes payment accordingly, such paymem continues the liability of all three upon the note even though the latter was the principal and the two former were sureties upon the note. But a joint maker who had no agency in making such request of payment is not liable.

5. Whoever makes a promise or an acknowledgment, either orally or in writing, or by a payment of principal or interest, which is to have the effect to rescue a debt from the force of the statute of limitations, must be the party to be charged, or be duly authorized by the party to be charged.

6. One co-partner cannot, after the dissolution of the firm, bind his co-partner by a new promise, or revive a debt, barred by the statute of limitations, by a payment of principal or interest. made either before or after the lapse of six years mentioned in the

statute.

6. The law respecting the effect of a payment, on a question as to taking a case out of the operation of the statute of limitations, has not been changed by the Code.

6. A payment which will take a case out of the operation of this statute, must be made under circumstances to warrant a finding as a question of fact, that the debtor intended to recognize the debt in question as subsisting, and which he was willing to pay. 7. (5 Q.) After a justices judgment has become barred by the statute of limitations, a new promise of payment, will so revive it that an action of debt may be maintained upon it.

8. Where the operation of the statute of limitations is avoided by a new promise, the old demand, and not the new promise, must be the foundation of the action.

9. The statute of limitations which bars an action on a justices judgment after six years, does not extinguish it or destroy its lien, where it has been docketed in the county clerks office.

10 (6 Q.) A promise to pay money at a future day, is just as absolute, and uncondi tional, as a promise to pay immediately, or on demand. But an acknowledgment of the existence of the indebtedness, and proposing a compromise, but distinctly indicating an unwillingness to pay, and a determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out, of the statute.

11. (7 Q.) A promise made since the Code took effect, to pay a debt which was barred by the statute of limitations before the Code, will not revive the cause of action, unless such promise be in writing as prescribed by the statute.

12. This section, under the amendment of 1849, which requires that a promise, to take a case out of the operation of the statute of limitations, shall be in writing, is not applicable to cases where the right of action had accrued before the adoption of the Code; although the new promise or acknowledgment was made subsequently.

13. A right of action upon a promissory note, accrues when the note is payable, and where such right accrued before the Code took effect, an acknowledgment or promise, in order to take the case out of the statute of limitations, need not be in writing,

14. The effect of the enactment of the provision in the Code (of 1849), requiring an ac knowledgment or promise to be in writing, is to establish a new rule of evidence for all cases, where the action is brought after the period limited by the statute.

15. (9 Q.) Administrators are not deprived of the benefit of the statute of limitations, in an action for a balance of indebtedness upon a promissory note given by the decedent, which has been established by a surrogates decree, and an order of payment pro rata made thereon out of the assets. The order made by the surrogate and the payment under it, does not amount in law to a promise on the part of the administrators to pay the balance.

16. (10 Q.) The Revised Statutes (2 R. S. 301,) respecting the presumption of payment