of judgments, after a lapse of twenty years, and declaring 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, were not intended to to have a retroactive effect, so as to embrace judgments recovered prior to the passage of the Revised Statutes.

17. 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. A presumption of payment operates as a payment only in favor of the party entitled to the benefit of the presumption.

18. (11 Q.) It is a suflicient signing of an instrument, to save a claim from the statute of limitations, under this section, if it is evident from any part of the instrument that the, debtor named in it, has given to it his assent. And it is competent, in such case, to show by a witness that such instrument referred to the claim in suit.

19. (12 Q.) An acknowledgment, to take a case out of the operation of the statute of limitations, need not express any intention to pay the debt, An iutention to pay is to be presumed.

20. An acknowledgment to be sufficient to take a case out of the statute, must not only be an admission of the existence of the debt. but in addition, a recognition of a liability to pay, in such a mode as will authorize the inference of a new promise.

21. An acknowledgment of the indebtedness should contain, an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay. 22. An acknowledgment of an indebtedness sufficient to take the case out of the stat ute must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay.

23. It is the province of the court, to find, as a matter of fact, whether a new promise under the circumstances, might fairly be implied. And such finding must be deemed final.

24. (13 Q.) A general assignment for the benefit of creditors, is 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 of limitations.

SECTION 111.

TITLE III.

Of the parties to civil actions.

Action to be in the name of the real party in interest.

112, Assignment of a thing in action not to prejudice a defense.

113.

Executor or trustee may sue without the persons beneficially interested. 114. When married woman is party, her husband to be joined, except, &c. 115. Infant to appear by guardian.

116. Guardian, how appointed.

117. Who may be joined as plaintiffs.

118. Who may be joined as defendants.

119. Parties united in interest, when to be joined. When one or more may

sue or defend for the whole.

120. Plaintiff may sue in one action, the different parties to commercial paper. 121. Action when not to abate by death, marriage, or other disability, &c. Proceedings in such case.

122. Court when to decide controversy, or to order other parties to be brought in.

$111. Action to be in the name of the real party in interest. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision.

1. Question. Has this section been amended since its passage in 1848 ?

Answer. It has, in 1849, 1851, 1862 and 1866, which last amendment reads as above. 2. Q. How did this section read in 1848, 1849, 1951 and 1862 ?

A. As follows:

$91. [1848.] Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 93.

§ 111. [1849.] Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen.

$111. [1851.] Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.

$111. [1862.] Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee of land in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision.

Questions.

3. Q. How should banking corporations bring an action?

4. Q. When does title by possession authorize the holder of negotiable paper, to sustain an action as the real party in interest }

5. Q. When is the plaintiff to be considered the real party in interest, in actions brought upon non-negotiable paper, or agreements to pay money, &c.

6. Q. Is a dormant partner a necessary party as plaintiff, in an action, legal or equitable, to recover a partnership debt?

7. Q. Who should be made parties in an interpleader suit?

8. Q. When may an action for trespass or misfeasance be sustained against both the sheriff and his deputy, jointly?

9.Q. What causes of action at law are assignable, so as to authorize the assignee to sue in his own name?

10. Q. When will assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility only, be sustained in equity!

11. Q. Who are entitled to bring actions under the statutes of 1847 and 1849, for causing death by the wrongful act, neglect or default of the defendant?

12. Q. Are causes of actions for breach of contract assignable, so as to require the assignee to sue in his own name, although there may be an election of remedies for tort or breach of contract?

13. Q. Has an assignee of a policy of insurance a right to bring an action in his own name, to recover the insurance?

14. Q. What special contracts and devises are assignable and alienable ?

15. Q. What causes of action are, and are not assignable?

16. Q. Is a right of action for money lost in gaming, assignable?

17. Q. Is a right of action against a common carrier, for negligence in the non-delivey of of goods, assignable?

18. Q. Is a right of action against common carriers, for injuries to the person, assignable? 19. Q. Are any of the following subjects assignable, to wit: Future income of personal estate held under limited trust; pensions, Indian annuities, or contract with the general gov crnment: A right of action to cancel contraets and notes on the ground of usury?

20. Q. How may choses in action, written instruments and securities be transferred? 21. Q. When by an assignment of the principal debt, security or thing, does it carry with it, all the incidents relating to the principal ?

22. Q. What is necessary to constitute an equitable assignment of a fund?

23. Q. Is it necessary for an assignee of a thing in action, or contract to show that he paid or agreed to pay, a consideration for it, or is it necessary to show any consideration?

24. Q. Where a demand due, is assigned to several assignees to secure their respective specific sums due from the assignor, can one of the assignees by action, collect his part of the demand?

25. Q. Can a delivery and surrender of a written assignment of accounts or claim operate as an equitable re-assignment?

26. Q. Can a claim or demand for insurance, after a loss, be assigned by the insured, so as to give the assignee a right of action thereon, although a clause in the policy, forbids such assignment, without the consent of the insurers!

27. Q. Have assignees for the benefit of creditors, authority to assign a claim due to them as trustees, to a third person, to collect and appropriate the proceeds, under the provi. sions of the original assignment?

28. Q. Can a plaintiff who sues as assignee of a cause of action, of which he is not at the time the owner, sustain his action by purchasing it after issue joined?

29. Q. When has the assignee of a judgment recovered for fraud, authority to pursue the same remedies against the defendant as the original plaintiff?

30. Q. Have the provisions of this section, any application to suits by official persons in their name of office?

31. Q. In whose name should actions upon administrators bonds, and that class, be brought? 32. Q. Does the personal estate and equitable interests of debtors, vest in a receiver appointed in a creditors suit, without an assignment from the debtors?

33. Q. Who is the party in interest, in whose name a suit should be brought, to recover subscriptions for the building of a church edifice?

34. Q. Is the grantee of rent reserved in fee authorized to maintain an action of covenant for the rent, and to re-enter or to bring ejectment for the non-payment of rent, equally with the right his grantor possessed?

35. Q. Can the grantor of a conveyance, who has been induced by fraud to make it, assign his right of action, to set aside the conveyance for such fraud?

36. Q. Has an assignor for the benefit of creditors, sufficient interest in the assigned property,to set aside an attachment, or judgment and execution, previously obtained against him? 37. Q, When may a principal sue in his own name on a contract, made with and in the name of his agent; and when can a factor or agent sue in his own name on a contract made with him?

33. Q. Can a note made by a firm to one of its members, be transferred after maturity, by the payee, so as to authorize the holder to maintain an action on it against the firm ?

39. Q. When is a bank or the depositor, the real party in interest, to recover funds deposited under a special agreement with the bank, for redemption with another bank who is alleged to be liable therefor?

40. Q. Can a person whose rights are injuriously affected under a judgment or proceeding in a foreclosure suit, though not a party thereto, move to amend them?

41. Q. Can a deputy sheriff maintain an actin in his own name for the recovery of goods levied upon by him, and taken from him as such deputy sheriff?

42. Q. Can the master of a vessel maintain an action in his own name to recover freight? 43. Q. When will an attorney of the court be required to produce his authority to appear and act for his client?

44. Q. Has the court a right to call upon the attorney in the cause to make known the res. idence and occupation of his client?

45. Q. Can an imprisoned debtor be sued in a civil action?

46. Q. Can an action be sustained by a parent for an injury to his minor child?

47. Q. Can a reversioner sustain an action to recover for waste by a tenant, after aliena tion of the estate?

48. Q. Can an individual maintain an action for a specific performance of a public duty!

49. Q. Can a holder of choses in action as collateral security, enforce payment of them? 50. Q. Has one partner power to assign legally or equitably, a demand or chose in action belonging to the partnership?

51. Q. How must the defense that the plaintiff's claim was assigned before suit brought be interposed?

52. Q. Can a coroner assign a replevin bond?

53. Q. Can a sheriff assign his claim to fees and compensation?

54. Q. Can a widow convey her dower before it is assigned to her?

55. Q. Is there an implied warranty that every instrument assigned, whether negotiable or not, is valid?

56. Q. What evidence of a transfer or delivery of a chose in action is sufficent?

57. Q. When can a sheriff maintain an action in his own name to set aside an assignment

of the judgment debtor's property, which has been converted into money?

58. Q. Can a receiver sustain an action to recover a usurious premium paid by the judyment debtor?

59. Q. Can executors aud administrators appointed in another state maintain actions in this state?

60. Q. Can one tenant in common holding possession of the whole premises under an agree ment from the others to convey to him, maintain an action for an injury to the premises? 61. Q, Can a third person who has no lien upon a chose in action maintain an action against the assignee thereof, who purchased it subject to the payment of a debt of the former ? 62. Q. Can a grantee who holds under a void title by reason of the land being held adversely to the grantor, maintain an action to recover possession, without the consent of the grantor?

3. Q. How should banking corporations bring an action?

4. In The Camden Bank agt. Rodgers, 4 How., 64, Special Term, July, 1849, HARRIS, J., it was decided that where an action was brought upon a draft made payable to the cashier of the bank; and the complaint alleged that it was delivered to the said cashier "for the said bank," held, on demurrer that every action must now be prosecuted by the real party in interest, the action was properly brought in the name of the bank, as the real party in interest.

In The East River Bank agt, Judah, 10 How., 136, Special Term, October, 1854, INGRAHAM, J., it was decided that an association formed under the general banking law may maintain an action either in the name of its president, or the name used in transacting its business.

In The Leonardsville Bank, agt. Willard, 16 Abb,, 112, General Term, January, 1859, BALCOM, J., it was decided that a banking association formed under the general law may sue in its associate name. It is not restricted to using the name of the president.

In S. C. 25 N. Y. R., 576, December, 1862, DENIO, J., it was decided that as against one who has dealt with a banking association, organized as such under the general law, its incorporation is sufficiently proved by the recording of its articles in the county clerk's office, and its user of corporate powers under color of incorporation, without proof that the articles were filed in the banking department. Such association may sue in its corporate name, as well as in the name of its president.

4. Q. When does title by possession authorize the holder of negotiable paper to sustain an action as the real party in interest?

A. In Mottram agt. Mills, 1 Sandf., 39, General Term, November, 1847, SANDFORD, J., it was decided that possession of negotiable paper, is presumptive evidence of title, and a right to bring the action as the real party in interest. And a plaintiff's full indorsement of a bill to a subsequent indorsee, remaining thereon uncancelled at the trial, is no objec tion to his recovery against a prior party, if he produce it as the holder. The plaintiff may cancel his own and the subsequent indorsements at the trial, or not cancel them at all.