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30. (20 Q.) A creditor who procures an insurance on the life of his debtor, has a continued insurable interest therem, although the statute of limitations, would have been a bar to his action, if pleaded, before his debtor's death.

31. (21 Q.) The statute of limitations is not a bar to a creditor's action until six years from the return of the execution at law.

32. (22 Q.) The statute of limitations in an action to recover a deposit of money, commences to run from the time actual demand for the money is made.

$92. Within three years.

Within three years:

1. An action against a sheriff, coroner or constable upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the nonpayment of money collected upon an execution. But this section shall not apply to an action for an

escape.

2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different limitation.

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:

§ 72. [1848.] Within three years:

1. An action against a sheriff or coroner, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the nonpayment of money collected upon an execution. But this section shall not apply to an action for an

escape.

2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different limitation.

Questions.

3. Q. Does the three years statute of limitations run against an action brought against a sheriff, for acts done colore officii.

4. Q. Does the three years statute of limitations apply to an action against trustees of a manufacturing corporation to charge them personally with a debt of the company?

5. Q. When does the statute of limitations begin to run against a sheriff for not paying over money on a sale of lands in a partition suit?

6. Q. When does the statute of limitations begin to run on a claim against a sheriff for money received on a foreclosure of a mortgage?

7. Q. Does the three years or six years statute of limitations apply to an action against a stockholder of the Rossie Galena Company, for a claim for goods sold to the company?

8. Q. Is this statute applicable in an action by a sheriff against his deputy and his sureties, where the sheriff has not been sued?

3. Q. Does the three years statute of limitations run against an action brought against a sheriff for acts done colore officii?

A. In Dennisson agt. Plumb, 18 Barb., 89, General Term, May, 1854, MARVIN, J., it was decided, that where the sheriff seizes and sells the property of B. upon an execution against A, he is to be regarded as "doing an act in his official capacity," within the meaning of the statute requiring suits against sheriffs and coroners, for officia! acts, to be brought within three years.

In Coddington agt. Carnly, 2 Hilt., 531, Special Term, August, 1858. HILTON, J., it was decided, that an action to recover goods wrongfully taken by a sheriff under an execution, must be brought within three years from the day the levy was made. But the period which may elapse between the death of any person and the granting of letters testamentary on his estate, not however exceeding six months, and the period of six months after such letters are granted, are not to be deemed a part of such limitation of three years.

4. Q. Does the three years statute of limitations apply to an action against trustees of a manufacturing corporation to charge them personally with a debt of the company?

A. In Merchants Bank of New Haven agt. Bliss, 21 How., 365, N. Y. Superior Court, General Term, August, 1861, ROBERTSON, J., it was decided, that an action brought to charge the defendants, as trustees of a manufacturing corporation, organized under the statutes of this state, with personal liability for a debt of the company, on the ground of omission to file the report of the company as prescribed by statute, and declaring and paying improper dividends, is an action upon a statute for a penalty, given to the party aggrieved, and must be commenced within three years after the cause of action accrued. 5. Q. When does the statute of limitations begin to run against a sheriff for not paying over money on a sale of lands in a partition suit?

A. In Van Tassel agt. Van Tassel, 31 Barb., 439, General Term, May, 1860, BROWN, J., it was decided, that for the omission of a sheriff to pay over to the county treasurer the proceeds of a sale of lands in a partition suit, the period of limitation begins to run at the time the omission occurs, and not from the time when the party in interest becomes apprised of his right of action. The court has the power to withhold, and should withhold, the exercise of its jurisdiction in summary proceedings on motion, whenever an action for the claim sought to be enforced is barred by the statute of limitations.

6. Q. When does the statute of limitations begin to run on a claim against a sheriff for money received on a foreclosure of a mortgage?

A. In Van Nest agt. Lott, 16 Abb., 130, Special Term, October, 1862, SCRUGHAM, J., it was decided, that the time of limitation by a plaintiff in foreclosure against the sheriff for money received on a sale of the mortgaged premises, does not begin to run until the sheriff's deed is delivered, and the sale perfected. A cause of action does not accrue within the meaning of the statute of limitations till the creditor has the right to demand present payment from his debtor.

7. Q. Does the three years or six years statute of limitations apply to an action against a stockholder of the Rossie Galena Company, for a claim for goods sold to the company?

A. In Corning & Horner agt. McCollough, 1 How., Ct. App. Cas., 126, November, 1857, JONES, J., it was decided, that an action brought against a stockholder of the Rossie Galena Company, individully, under the act incorporating the company (Statutes of 1837, p. 445) for goods, wares, &c., delivered to the company was not an action upon a statute for a forfeiture or cause, the benefit and suit whereof, is limited to the party

aggrieved, therefore not barred by the short statute (three years) of limitations; but the six years statute of limitations applies in such suits.

8. Q. Is this statute applicable in an action by a sheriff against his deputy and his sureties, where the sheriff has not been sued?

A. In Willett agt. Stewart, 43 Barb., 98, General Term, November, 1864, G. G. BARNARD, J., it was decided, that the defendants claim, was first, that they are not liable because the sheriff was not sued to recover this sum until after three years from the time the money was made by the deputy, and that by section 92 of the Code the action was barred by lapse of time. It was a breach of the deputy's bond to the sheriff if he failed to pay money collected, even if the sheriff should never be sued or made to pay the amount. (McClure agt. Erwin, 3 Cowen, 313.) The deputy's liability depends solely upon his own omission to pay the sheriff, and not in any manner upon what becomes of the money after the sheriff receives it, or who is entitled to it.

What is the result of the decisions under this section?

1. (3 Q.) The sale of the property of B, by a sheriff upon an execution against A, is an act done in his official capacity, and an action therefor, is barred by the three years statute of limitations.

2. Where a sheriff takes goods wrongfully under an execution, an action to recover them must be brought within three years from the day the lexy was made, to save from the statute of limitations.

3. (4 Q.) An action to charge trustees of a manufacturing corporation, with personal liability, for a debt of the company, created by reason of a violation of the statute by the company, must be commenced within three years after the cause of action accrued.

4. (5 Q.) An action against a sheriff for omission to pay over to the county treasurer the proceeds of a sale of lands on partition, must be brought within three years from the time the omission occurs, to prevent the application of the statute of limitations.

5. (6 Q.) A cause of action, as between debtor and creditor, does not accrue, in refercnce to the statute of limitations, until the creditor has a right to demand present payment from his debtor. The time of limitation of an action against a sheriff for money received on a foreclosure of a mortgage, does not begin to run until the sheriff's deed is delivered, and the sale perfected.

6. (7 Q.) The three years statute of limitations does not apply to an action against a stockholder of the Rossie Galena Company, incorporated by the statute of 1837, for goods &c., sold to the company, the six years statute applies in such case.

§ 93. Within two years. (Same as § 73 in 1848.)

Within two years:

1. An action for libel, slander, assault, battery, or false imprisonment.

2. An action upon a statute, for a forfeiture or penalty to the people of this state.

§ 94. Within one year. (Same as $74 in 1848.)

Within one year:

1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process.

1. Question. Does the one year statute of limitations apply to an action against a sherif for an escape, where the prisoner afterwards voluntarily returned to the custody of the sheriff, and before the plaintiff had notice of the escape?

Answer. In Renick agt. Orser, 4 Bosw., 384, General Term, March, 1859, BOSWORTH, Ch. J., held: "In an action against the sheriff, for the escape of a prisoner committed on a ca. sa., and duly admitted to the jail liberties; where the escape counted on was alleged and proved to have occurred in August, 1855, that it was no defense, that in January of that year there was a prior escape; where it appeared that the prisoner voluntarily returned into custody, and continued there until the second escape, and it did not appear that the plaintiff had any notice of the first escape before the return of the prisoner into custody: although the action was brought more than a year after the first escape, and the defendant pleaded the statute of limitations.

In Smith agt. Knapp, 30 N. Y. R., 581, June, 1864, MULLIN, J., it was decided, that a delay of more than three months in issuing a ca. sa., where the defendant, at the time of rendering a judgment against him, is in custody upon process issued in the cause, will entitle him to a supersedeas. The defendant's remedy, in such a case, is to apply to a judge for a supersedeas on the ground that he was not charged in execution within the time limited by the statute, or by motion to the court. If he does neither, the imprisonment will be regular, and the sheriff liable on the escape of the prisoner, either as bail or in action for the escape. The plaintiff has an election which of these remedies he will adopt, and that election is manifested by the complaint. If the complaint makes no mention of the defendant as bail, and there is nothing in it manifesting an intention or election to hold him liable in that character, it is to be treated as an action for an escape, and the limitation of one year for bringing an action prescribed by section 94 of the Code of Procedure, applies.

$95. When cause of action accrued, in an action upon a cur

rent account.

In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.

1. Question. Has this section been amended since its passage in 1818? Answer. It has, in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

$75, [1848.] In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item in the account, on the adverse side.

3. Q. Should the "mutual, open and current accounts," mentioned, be held to mean accounts and dealings originally between the parties? and what are such accounts?

A. In Kimball agt. Brown, 7 Wend., 322, General Term, May, 1831, SAVAGE, J., it was decided, that unless there have been mutual accounts and reciprocal demands between the parties one item of account within six years, before suit brought, will not draw after it items beyond six years in the account on both sides so as to protect them from the statute of limitations.

In Tucker agt. Ives, 6 Cow., 192, General Term, August, 1826, SUTHERLAND, J., it was

decided, that an account, many items of which arose within six years before suit, is not barred by the statute of limitations as to those items which arose more than six years before suit. And this rule extends as well to the defendant's accounts, introduced by way of set-off, as to the plaintiffs.

In Chamberlin agt. Cuyler, 9 Wend., 125, General Term, May, 1832, SUTHERLAND, J., it was decided, that where, from the commencement to the termination of an account, charges have been made at least as often as once in six years, and the last item is within six years anterior to the commencement of the action, the whole of the account is to be allowed, notwithstanding that the statute of limitations is interposed as a bar.

In Edminstone agt. Thomson, 15 Wend., 554, General Term, July, 1836, SAVAGE, J., it was decided, that the payment of a running account down to a certain period, and the taking of a receipt for such payment, precludes an item of account accruing within six years, from drawing after it any items beyond six years extinguished by such payment. In Hallock agt. Losce, 1 Sand., 220, General Term, January, 1848, OAKLEY, J., it was decided, that it is only in mutual accounts, that an item within six years, saves those beyond six years from being barred by the statute of limitations; and there must be accounts on both sides to make a mutual account.

In Ogden agt. Astor, 4 Sandf., 325, General Term, December, 1850. MASON, J., it was decided, that under the former statute of limitations, which excepted from the six years bar, "actions which concern the trade of merchandise between merchant and merchant," &c., mutual accounts between partners and between two merchants, were exempt from the operation of the statute. althongh no item on either side accrued within six years before the suit was brought. Where there has been such acquiesence in an account rendered between partners as to make it a stated account, it cannot be opened, unless it is made clearly to appear that one of the partners committed frauds in making it up, which frauds were not discovered, and with reasonable diligence could not have been discovered, until within six years previous to the commencement of the suit.

In Green agt. Âmes, 4 Kern., 225, June, 1856, COMSTOCK, J., it was decided, that where a mutual, open and current account exists between parties, and one of them purchases from a third person and holds an open account against the other, without notice to or recognition of its validity by the latter, it does not become a part of the mutual account between them, with the provision of the statute of limitations as to actions upon such accounts. The demand, so purchased and held, becomes barred by the lapse of six years from the time it accrued to the assignor, notwithstanding it was assigned before the statute attached, and there existed then and afterwards continued a mutual account and reciprocal dealings between the assignee and the debtor.

In Peck agt. The New York and Liverpool U. S. Mail Steamship Co., 5 Bosw., 226, General Term, July, 1859, HOFFMAN, J., it was decided, that the presentation of a bill, containing items of alleged extra work, within six years before suit brought, and the payment of such bill, with the exception of one item, the accuracy of which and liability for which is promptly denied, will not prevent the statute barring all right of action for such item at the end of six years from the time when the alleged service was fully performed. The items of debit for the contract price of the work, and for extra work alleged to have been done, and of credits for payments made, do not make a case of "reciprocal demands," within the meaning of section 95 of the Code.

What is the result of the decisions under this section?

1. (3 Q.) One item of account within six years before suit brought, will not draw after it items beyond six years, in the account on both sides so as to protect them from the statute of limitations unless there have been mutual accounts between the parties.

2. An account, in which many items arose within six years before suit, is not barred by the statute of limitations, as to those items which arose more than six years before suit.

3. Where charges have been made as often as once in six years between the commencement and termination of an account, and the last item is within six years before the commencement of the action, the whole of the account is to be allowed-the statute of limitations is no bar.

4. Payment of a running account down to a certain period, precludes an item of account, accruing within six years, from drawing after it any item beyond six years from the payment.

5. There must be accounts on both sides to make a mutual account.

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