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PROVISIONS APPLICABLE TO ALL

The above provisions not to affect

tations by

tutes;

suits against directors or stockholders of monied incorporations, to re

"The provisions of this title shall not extend to any action GENERAL which is, or shall be limited, by any statute, to be brought within a shorter time, than is herein prescribed; but such action ACTIONS. shall be brought within the time limited by such statute."47 "None of the provisions of this chapter shall apply to suits shorter limiagainst directors or stockholders of any monied corporations, other stato recover any penalty or forfeiture imposed, or to enforce nor apply to any liability created, by the second title of the eighteenth chapter of the first part of the revised statutes; but all such suits shall be brought within six years after the discovery by the aggrieved party, of the facts upon which such penalty or forfeiture attached, or by which such liability was created."48 "The provisions of the preceding articles of this title, shall not apply to any actions commenced, nor to any cases where within six the right of action shall have accrued, or the right of entry shall exist, before the time when this chapter takes effect as law; but the same shall remain subject to the laws now in force."49

cover penalto enforce

ties, &c. or

certain liabilities; but they

must be

brought

years after a discovery of

the facts; a nor do they, menced, nor

or

actions com

rights of action or of entry existing on the 1st of Jan. 1830. Presumption of payment,

applies to

recovered in

courts of re

The statutes have defined and regulated the presumption of law, which arises from lapse of time, that a debt by deed judgment has been paid and satisfied, in the following manner. judgments "The presumption of payment shall apply to all judgments of a court of record in this state, rendered before the third day of April, one thousand eight hundred and twenty-one; the same and to all such judgments rendered before this chapter shall sealed instrutake effect as a law, in the same manner as such presumption (see post.) applies to sealed instruments."'50

cord of this state before the 1st of Jan. 1830. in

manner as to

ments;

ments and decrees here

"Every judgment and decree hereafter rendered in any arises upon court of this state, or of the United States, or of any other all judg state or territory within the United States, shall be presumed after renderto be paid and satisfied, after the expiration of twenty years years from

ed, after 20

signing and

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PRESUMP from the time of the signing and filing such judgment or de

TION OF PAYMENT.

filing; but may be re

pelled by proof of

payment or

cree: but in any suit at law or in equity, in which the party against whom such judgment or decree was rendered, or his heirs or personal representatives, shall be a party, such presumption may be repelled by proof of payment, or of written ment of in- acknowledgment of indebtednesss, made within twenty years, of some part of the amount recovered by such judgment or decree; in all other cases it shall be conclusive."'51

written ac

knowledg

debtedness,

within 20

years of part of the amount; otherwise to be conclusive;

arises upon specialties

"After the expiration of twenty years from the time a right for the pay of action shall accrue upon any sealed instrument, for the

ment of mo

ney after 20

right of ac

tion ac

crued ;

years from payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be rebut may be pelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action, within that period."

repelled by proof of payment of part or of a written acknowledgment of the right of action within

the 20 years.

Particular

provisions.

1152

In other titles of the statutes will be found the following provisions on the subject of the limitation of actions.

"The term of eighteen months after the death of any testaActions tor or intestate shall not be deemed any part of the time limited sonal repre- by law for the commencement of actions against his executors or administrators."53

against per

sentatives allowed, beyond any limitation, 18

months after

"The time which shall have elapsed between the death of any person, and the granting of letters testamentary or of adtheir favour, ministration, on his estate, not exceeding six months, and the

the death;

so, if in

6 months af

ter letters period of six months after the granting of such letters, shall

granted, and

exceeding

the time, not not be deemed any part of the time limited, by any law for the commencement of actions, by executors or administrators."

6 months,

while they

are delayed

to be grant

9954

ed.

51 Ib. s. 47.

52 Ib. s. 48. Cases under old stat. 6 John. Rep. 210. 10 Ib. 417. 381. 7 Ib. 556. 2 Cranch. 180. Ld. Raym. 1370. Str. 826. 652. 1 T. R. 270, 1. Burr. 434. 1963.

6 Mod. 22. 1 Camp. 217. Stark. 101.

53 2 R. St. 448. P. 3. Ch. 8. T. 3. s. 8.

54 Ib. s. 9.

PROVISIONS.

Executors to give notice

to refer

The statutes direct, that executors and administrators after PARTICULAR. six months from the granting of letters, shall give notice in the newspapers to the creditors of the deceased, to exhibit or pre- and allowed sent their claims within a certain time not less than six months claims exhibited; from the day of the first publication of the notice, and prescribe a particular mode of reference which may be adopted, if the claims are disputed.101 And it is declared, that "If a and not so claim against the estate of any deceased person be exhibited to ditor must, the executor or administrator, and be disputed or rejected by months after him, and the same shall not have been referred, the claimant tion, &c. shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, or within six months

after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon; and no action shall be maintained thereon after the said period, by any other person deriving title thereto from such claimant; and any executor or administrator may on the trial of any action founded upon such demand, give in evidence, in bar thereof, under a notice annexed to the general issue, the facts of such refusal and neglect to commence a suit."102

if rejected

referred, cre

within 6

such rejec

bring his ac

tion or be

barred;

presented

to within six

months after

of the notice

be- executor not

be

in

to be charged for what he

has paid for

legacies, &c;

It is further provided, that "In case any suit shall be and if not brought upon a claim, which shall not have been presented the executor or administrator of a deceased person, within six publication months from the first publication of such notice, as herein fore directed, such executor or administrator shall not chargeable for any assets or monies that he may have paid satisfaction of any claims of an inferior degree, or of any legacies, or in making distribution to the next of kin, before such suit was commenced; but may prove such notice published by him as aforesaid, and such payment and distribution, in support of his plea of having administered the estate of the deceased."103

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PARTICULAR

PROVISIONS.

hands, &c.;

"In such action, the plaintiff shall be entitled to recover but only for only to the amount of such assets, as shall have been in the assets in his hands of such executor or administrator, at the time of the commencement of the suit; or he may take judgment for the amount of his claim, or any part thereof, to be levied and collected of assets, which shall thereafter come into the hands of but what has such executor or administrator."104 "But any creditor, who buted to le- may have neglected to present his claims as aforesaid, may, notwithstanding, recover the same, in the manner prescribed by law, of the next of kin, and legatees of the deceased, to whom any assets shall have been paid or distributed."'105

been distri

gatees, &c.

inay be re

covered of them.

Scire facias

against per

sentatives

year after

It is also povided,55 that writs of scire facias "against personal repre- sonal representatives of any party, shall be issued within one barred in 1 year after the cause for issuing the same shall arise." And that "writs of scire facias, to revive any judgment or recowhich shall have been docketed when this title. takes effect, must be brought within ten years thereafter; and such

cause for same arises; and to revive a judgment docketted before 1st

Jan. 1830 in

ter, but if

docketed

very,

10 years af- writs, when brought to revive any such judgment or recovery docketed after this title takes effect, shall be brought within ten time, in 10 years after the time of the docketing thereof."56

after that

years after

docketing.

ror must be

brought within two years;

Writs of er- The limitations respecting writs of error are as follows: "All writs of error upon any judgment or final determination rendered in any cause, in any court of law and of record in this state, shall be brought within two years after the rendering of such judgment or final determination, and not after, except in the cases specified in the two next sections."'106

unless in cases of disability;

"If any person against whom such judgment or determination shall be made, shall be at the time, either, 1. Within the age of twenty-one years: or, 2. Insane: or, 3. Imprisoned on any criminal charge: or, in execution upon some conviction of a criminal offence, for any term less than for life: or,

104 Ib. s. 40.

105 2 R. St. 90. s. 42.

55 2 R. St. 576. P. 3. Ch. 9. T. 2. s. 2.

56 Ib. 577. s. 3.

106 2 R. St. 594. s. 21.

4. A married woman: the time during which such disability shall continue, shall not be deemed any portion of the time above limited for bringing a writ of error: but such person may bring such writ after the time so limited, and within two years after such disability removed."107

PARTICULAR

PROVISIONS.

two years after death of

person under

disability al

heirs, &c;

"If the person entitled to bring such writ, shall die, during the continuance of any disability specified in the preceding section, his heirs, devisees, executors or administrators, enti-lowed to tled by law to prosecute such writ, may bring the same, after the time herein limited for that purpose, and within two years after such death.'

99108

years a writ

"But the existence of any disability specified in the prece- but after five ding sections, shall not authorize the bringing of a writ of

of error can

in no case be brought al

error upon any judgment, after the expiration of five years though disafrom the time of rendering the same."'109

bility exists.

cisions,

It will be perceived, that many of those rules of law which Judicial de courts have applied to the statute of limitations are superseded by the above provisions of the revised statutes. The following principles settled by the courts, however, appear to be still now applicaapplicable.

ble.

applies to contracts made abroad

And, 1. The statute of limitations applies as well to con- Our statute tracts made and to be executed out of this state, as to those which are made here; and it is a bar to a cause of action arising in another country, when sued upon in our own courts, although the time of limitation allowed by the laws of that country had not expired, or no period of limitation is prescribed by those laws;57 and, on the other hand, if they have taken away the right of action, it is no objection to the suit here; for the lex loci contractus, applies only to the validity or interpretation of contracts, and not to the time, mode, or extent of the remedy.58 And a foreign judgment, being of no

107 Ib. s. 22. 109 Ib. p. 595, s. 23. 199 Ib. 8. 24.

57 1 Caines' Rep. 402.
35 3 John. Rep. 263.

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