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a discharge in bankruptcy, or a release by act of the creditor, or a constructive payment, about the truth or effect of which circumstances a dispute exists, an action to try the newly arisen issues would be proper, and perhaps necessary; and the court, on application and notice, would readily grant the desired leave to bring such action. In the present instance, leave, it appears, was applied for, and, under a misapprehension was refused as unnecessary. The case appears a proper one for an actiona disputed discharge in bankruptcy is set up as canceling the effect of the antecedent judgment. Leave, therefore, must be granted nunc pro tunc, and the summons and complaint retained.

8. 72. [65.] Existing suits. Feigned issues abolished.

Feigned issues are abolished; and instead thereof, in cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

a. The court may order a seigned issue in an action for divorce on the ground of adultery to be tried by referees, on consent of both parties. Anon., 5 Pr. R., 306; and see 1 Code Rep., 115. 3 Ib., 139.

b. A seigned issue should not be directed on a motion to set aside a judgment, where the notice of motion merely asks in addition to the principal relief) for,“ such further or other relief as the court may grant.” Mann v. Brooks, 7 Pr. R. 449.

See Rules of Supreme Court, in Appendix, rule 69.

TITLE II.

Time of commencing civil actions.*

CHAPTER I. In general.

II. For the recovery of real property.
III. Other than for the recovery of real property.
IV. General provisions.

CHAPTER I.

Time of commencing actions in general.

Section 73. Repeal of existing limitations.

74. Time for commencing actions, &c.

$ 73. [66.] (Amended 1849.) Repeal of existing limitations.

The provisions contained in the chapter of the revised stat

* The principle of the statute of limitations is applicable by analogy to demands prosecuted in the surrogate's court without any express provision. Ře Delacroix, dec'd. 1 Bradford Surrogate Rep. 1.

utes, entitled “ of actions and the times of commencing them,” are repealed; and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued ; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.

2. Section 66 of the code of 1848, for which this section was substituted, repealed only the 2d, 3d, 4th, and 5th articles of the chapter of the Revised Statutes referred to. In other respects the sections are identical. A question has arisen, whether this section excludes the provision contained in section 90, now 110; and it was decided that this section had no application to section 90, now 110. Wadsworth v. Thomas, 3 Code Rep. 227, and see section 110 of this code, and note.

$ 74. [67.] (Amended 1849, 1851). Period of limi , answer, &c.

Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, and in cases' mentioned in section seventythree. But the objection that the action was not commenced within the time limited can only be taken by answer.

b. This applies to causes of action which accrued before the code took effect. , Lefferts v. Hollister, 10 Pr. R., 383.

CHAPTER II.

Time of commencing actions for the recovery of real property.
Section 75. When the people will not sue.

76. When action cannot be brought by grantee from the State.
77. When actions by the people or their grantees, to be brought within

twenty years.
78. Seisin within twenty years, when necessary.
79. Seisin within twenty years, when necessary in action or defence

founded on title, &c. 80. Action after entry, or right of entry. 81. Possession, when presumed. Occupation, when deemed under legal title. 82. Occupation under written instrument, &c. 83. Adverse possession, under written instrument, &c. 84. Premises actually occupied, held adversely. 85. Adverse possession under claim of title not written. 86. Relation of landlord and tenant, as affecting adverse possession. 87. Descent cast. Effect of. 88. Persons under disability. 75. When the people will not sue. The people of this State will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless,

1. Such right or title shall have accrued within forty years before any action, or other proceeding for the same, shall be commenced; or unless,

2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.

a. See People v. Van Rensselear, 8 Barb., 189; People v. Arnold, 4 Coms.,

508.

$ 76. When action cannot be brought by grantee from the State.

No action shall be brought for, or in respect to, real property, by any person claiming by virtue of letters patent, or grants from the people of this State, unless the same might bave been commenced by the people, as herein specified, in case such patent or grant had not been issued or made.

§ 77. When actions by the people or their grantees, to be brought within twenty years.

When letters patent or grants of real property shall have been issued or made by the people of this state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case, an action for the recovery of the premises so conveyed may be brought either by the people of this State, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period.

$ 78. Seisin within twenty years, when necessary.

No action for the recovery of real property, or for the recorery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.

$ 79. Seisin within twenty years, when necessary in action or defence founded on title.

No cause of action or defence to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual unless it appear that the person prosecuting the

action, or making the defence, or under whose title the action is prosecuted or the defence is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question, within twenty years before the committing of the act in respect to which such action is prosecuted or defence made.

$ 80. Action after entry or right of entry. No entry upon real estate shall be deemed sufficient, or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued.

§ 81. Possession presumed. Occupation, when deemed under legal title.

In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person, shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for twenty years before the commencement of such action.

$ 82. Occupation under written instrument.

Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises, under such claim, for twenty years, the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.

$ 83. Adverse possession.

For the purpose of constituting an adverse possession, by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases :

1. Where it has been usually cultivated or improved ;
2. Where it has been protected by a substantial inclosure;

3. Where, although not inclosed, it has been used for the supply of fuel or of fencing timber, for the purposes of husbandry, or the ordinary use of the occupant;

4. Where a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

§ 84. Premises actually occupied, held adversely.

Where it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.

$ 85. Adverse possession under claim not written.

For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only:

1. Where it has been protected by a substantial inclosure ; 2. Where it has been usually cultivated or improved. See Miller v Garlock, 8 Barb., 153. $ 86. Relation of landlord and tenant.

Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent; notwithstanding that such tenant may have acquired another title, or may

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