$105. Time of stay of action by injunction or statutory prohibition to be deducted. When the commencement of an action shall be stayed by injunction, or statutory prohibition, the time of the continuance of the injunction, or prohibition, shall not be part of the time limited for the commencement of the action. 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: 385. [1848.] When the commencement of an action shall be stayed by injunction, the time of the continuance of the injunction shall not be part of the time limited for the commencement of the action. 3. Q. Is the time during which a plaintiff has been restrained by an injunction from commencing an action, to be reckoned, although he has not pleaded that the injunction was served on him. A. In Berrien agt. Wright, 26 Barb. 217 General Term, December, 1857, MITCHELL,P. J., said: The time during which the injunction was in force, was also sufficient to bar the statute. But the defendant objected that the plaintiff was not now to be benefited by the injunction, because he had not pleaded that the injunction was served on him. If an injunction is issued by the court at the instance of the defendant, as this was, and kept by him until it is vacated, which must have been upon motion of this plaintiff, it does not lie in the mouth of the party obtaining it to say it was not "in force." A defendant in an injunction suit who obeys its mandates without a service of the injunction is not to suffer on that account. It is in force as to him if it is brought to his knowledge, although he may not be liable to an attachment for contempt unless a formal service be made. The allegation in the reply that the plaintiff was restrained by the injunction from taking any proceeding, is more than a statement that an injunction with such words isned. It is that it issued and the plainliff himself was restrained by it. That could only be by some service of the injunction which prevented hi prosecuting his action. In McQueen agt. Babcock, 41 Barb., 337 General Term, Dec., 1863, E. DARWIN SMITH, J., it was decided that it being the duty of an assignee under an assignment to him in trust for the benefit of creditors, to take care of and protect the assigned property, he may maintain an action of trespass against any person who interferes therewith. The bringing of such an action by the assignee, against one who assumes to take the assigned property out of his possession, is in furtherance of his duty, and hence is not an intermeddling with the property improperly, or within the sense and meaning of an injunetion order prohibiting him from "intermeddling with, receiving or collecting" any of the property of the assignor. Such an injunction is no bar to a suit against the sheriff, for taking the assigned property out of the hands of the assignee; and if suit is not brought within three years, the statute of limitations will be a good defense. In Sands agt. Campbell, 31, N. Y R., March, 1865, DAVIES, J., it was decided that a note made and delivered to persons organizing a mutual insurance company, for the purpose of being presented to the commissioners appointed by the comptroller to examine the capital and securities of such company, is a premium note. An injunction restraining the receiver of said company from collecting and receiving any moneys on the premium notes of said company, included such note. And, therefore, the time during which such injunction was operative, must be deducted, when the statute of limitations is interposed as a defense to a suit upon such note. What is th result of the decisions under this section? 1. (3 Q.) The time during which a plaintiff has been restrained by injunction, from commencing an action, is not to be reckoned under the statute, alhough he has not pleaded that the injunction was served on him. It is sufficient if it appears that he had notice of it. 2. An assignee for the benefit of creditors, may maintain an action of tresspass against any person who interferes with the assigned property. 3. The bringing of an action of tresspass by an assignee for the benefit of creditors, for an interference with or taking of, the assigned property, is not a violation of an injunetion order prohibiting him from intermeddling with the property &c. An injunction prohibiting an assignee of creditors from intermeddling with the assigned property, is no bar to a suit against a sheriff, for the taking of assigned property out of the hands of the assignee; and if suit is not brought within three years, the statute of limitation applies. 5. The time during which an injunction, restraining a receiver of a mutual insurance company, from collecting premium notes, is operative, must be deducted, when the stat. ute of limitations is interposed as a defence to a suit upon such note. 106. Disability must exist when right of action accrued. (Same as 86 in 1848.) No person shall avail himself of a disability, unless it existed when his right of action accrued. 107. Where two or more disabilities, limitation does not attach, till all removed. When two or more disabilities shall co-exist, at the time the right of action accrues, the limitation shall not attach until they all be removed. 1. Q. Has this section been amended since its passage in 1848? A. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: § 87. [1848.] When two or more disabilities shall exist, the limitation shall not attach until they all be removed. $108. This title, not applicable to bills, &c., of corporations, or to bank notes. (Same as $ 88. 1848.) This title shall not affect actions to enforce the payment of bills, notes or other evidences of debt, issued by monied corporations, or issued or put in circulation as money. 109. Nor to actions against directors or stockholders of monied corporations or banking associations. Limitation in such cases prescribed. This title shall not affect actions against directors or stockholders of a monied corporation, or banking associations, to recover a penalty or forfeiture imposed, or to enforce a liability created, by law; but such actions must be brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created. 1. Q. Has this section been amended since its passage in 1818? A. As follows: $89. [1848.] This title shall not affect actions against directors or stockholders of a monied corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created, by the second title of the chapter of the Revised Statutes, entitled "Of incorporations ;" but such actions must brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created. 3. Q. Does the three years statute of limitations apply to actions against trustees of a manufacturing corporation, to charge them with a debt of the company? A, The answer to this question will be found under § 92, Q. 4 $110. Acknowledgment or new promise must be in writing. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest. 1. Q. Has this section been amended since its passage in 1818? 4. As follows: $90. [1848.] Where the time for commencing an action arising on contract shall have expired, the cause of action shall not be deemed revived by an acknowledgment or new promise, unless the same be in writing, subscribed by the party to be charged thereby. Questions. 3 Q. Is a payment made by the assignees of an insolvent debtor, of part of an assigned devi made within six years after the debt became due, and within six years before suit brought, a bar to the suit? 4. Q. Can one of several joint debtors on an obligation on contract, by partial payment, or by a new promise, made, either before or after the statute has run, bind his co-debtors so as to take the case out of the statute as to them? 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! 6. Does a conditima! promise to pay at a future time, operate to revive a debt barred by the statute of limitations? 7. Q. Is a promise made since the Code took effect, to pay a debt, barred or not barred by the statute of limitations before the Code took effect, required to be in writing to take the case out of the statute of limitations? 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? 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 administratix of the benefit of the statute of limitations in an action against her for the 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? 11. Q. What is a sufficient signing of an instrument, to save a claim from the statute of limitations, under this section? 12. Q. Is it requisite that the acknowledgment should express an intention to pay the debt? 13. Q. Is a general assignment for the benefit of creditors, such an acknowledgment or promise in writing, as takes an assigned note, of the assignor, out of the operation of the statute! 3. Is a payment made by the assignees of an insolvent debtor of part of an assigned debt, made within six years after the debt became due, and within six years before suit brought a bar to the suit? A. In Barger agt. Durvin, 22 Barb. 68, Special Term, March 1856, EMOTT, J., it was decided that where the makers of a promissory note, within six years before suit is brought thereon, and before a suit is barred by the statute of limitations, assign their property to trustees, in trust for the benefit of creditors, and direct them to pay such note, among others, in full if there shall be sufficient property, and if not, then to pay a ratable dividend upon it, with other debts, and the assignees in pursuance of such direction, make a dividend of fifty per cent, upon the note, and pay the amount to the holder, this payment will be treated as the act of the makers themselves, by their agent duly authorized for that purpose, and as evidence of a new promise by them to pay the note. A payment made by a part of the joint and several makers of a promissory note, within six years before suit is brought thereon, and before a suit is barred by the statute of limitations, will not revive the debt, as to the other makers. In Pickett agt, King, 34 Barb., 193, General Term, March 1861, E. DARWIN SMITH, J., it was decided that the rule in respect to partial payments remains the same as it was before the Code, viz., that in order to take a case out of the statute of limitations they must be made under circumstances to warrant a finding, as a question of fact, that the debtor intended to recognize as subsisting, the debt in question, and that he was willing to pay it. A debtor, upon assigning his property in trust for the benefit of creditors, parts with all control of the property assigned, and appoints the assignees his trustees to apply the proceeds thereof as directed in the assignment; but they do not become his agents in such a sense as to have authority to make any new contract or promise binding upon him, or to make a payment upon any of his debts which shall be equivalent to a new and express promise by him. An assignee is not an agent authorized to renew a debt, or take it out of the statute of limitations, as against the assignor. The case of Barger v. Durvin (22 Barb. 68) disapproved. In Miller agt. Talcott, 46 Barb., 167, General Term, Jan. 1866, BALCOM, J., it was decided that a promissory note for $1000, made by H. on the 17th of April, 1857, payable to the order of T., ninety days after date, with interest, at the Bank of N., and indorsed by T. & M., was discounted by the Bank of N., and the money was received by H. The note not being paid, when it became due, it was protested and T. was duly charged as indorser. The plaintiff paid to the bank the amount due upon the note, and became the owner thereof, on the 8th of June, 1858. H. assigned his property for the benefit of his creditors on the 29th of June, 1857. Soon after the note matured, T. paid one half the amount due thereon, to the Bank of N. On the 1st of January, 1858, the assignees of H. made a dividend of nine per cent. on the debts he owed, and paid $90 to T., to be upplied on this note. T. kept $15 of that money, and took the other half ($45) to the Bank of N., and paid it to the bank, upon the note, February 16, 1858, informing the cashier that the $15 was a dividend declared by the assignees of H. to apply on the note, and that he paid it to the bank as such. The cashier indorsed the $45 as paid by T. This action was commenced, by the plaintiff as holder, against T. as indorser, Feb. 13, 1864. Held that T. paid the $45 on the note, within six years next before the time of the commencement of the action, under circumstances that warranted the judge in holding that he then intended to recognize his liability to pay the entire note, and which he was willing to pay. 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. And the language of the authorities is that 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. Per BALCOM, J. 4. Q. Can one of several joint debtors on an obligation on contract by partial payment, or by a new promise made either before or after the statute has run, bind his co-debtors so as to take the case out of the statute as to them? A. In Van Keuren agt. Parmalee, 2 Comst, 523, Dec. 1849, BRONSON, J., it was decided that after the dissolution of a partnership, an acknowledgment and promise to pay, made by one of the partners, will not revive a debt against the firm which is barred by the statute of limitations. The leading cases on this question reviewed, and those of Patterson v.Choate, (7 Wend. 441,) and Johnson v. Beardslee, (15 John. 3,) holding a contrary doctrine, and the dicta to the like effect in other cases, overruled. Each partner, while acting within the scope of the partnership business, is deemed to be the authorized agent of the firm; and it is upon this principle, it seems, that one of the partners can bind his associates. Per BRONSON, J. But this presumed agency ceases on the dissolution of the partnership. The dissolution is a revocation of the authority, except so far as its continued existence is indispensable in winding up the concerns of the company. Per BRONSON, J. In Dunham agt. Dodge, 10 Barb., 566, General Term, July, 1850, ALLEN, J., it was decided that partial payments, made upon a joint and several promissory note, by one of the makers, before the statute of limitations has barred an action upou it, will not revive the debt, against the other parties to the note. In Shoemaker agt. Benedict, 1 Kern., 177, June, 1854, PARKER, J., it was decided that payments made by one of the oint and several makers of a note and indorsed upon it, before an action upon it is barred by the statute of limitations, and within six years before suit is brought, do not affect the defense of the statute as to the other. Accordingly, where three made a joint and several note payable in February, 1839, and payments were made by one and endorsed upon it, in 1839, 1840, December, 1843, and January and September, 1819, and a suit was commenced upon it in July, 1850, to which one of the others pleaded the statute of limitations; Held, that the action was barred as against him. In Winchell agt. Bowman, 21 Barb,, 448, General Term, April, 1856, S B. STRONG, J., it was decided that a payment upon a joint and several promissory note, made by one of the makers, upon a direct reference of the holder to him, for that purpose, by his associates, is operative as to their rights, so as to extend the duration of their responsibility, as well as of his own. Where H. and T., two joint makers of a promissory note, on being applied to the by the holder, for the payment of the interest due thereon, requested him to call upon B., another joint maker, for the amount, and B., on being applied to by the holder, paid the interest due; Held that H. and T., were bound by the act of B., as much as if it had been done in their presence and upon a request made by them, personally to him; the direct request that B. should do what was obligatory upon all, rendering him the agent of the others; and that such payment was sufficient to take the case out of the statute of limitations, as to all. The case of Shoemaker v. Benedict, (1 Kernan, 181,) ought not to be extended beyond what was necessarily decided therein, nor applied to a case where there has been a direct recognition of the agency of the joint contractor |