Adams agt. Fort Plain Bank. that duty was performed. Did the plaintiffs in those actions want more than that? If they did, it was doubtless their right to demand it; and the attorneys therein had provided against this future contingency by their prospective charges taxed or adjusted in their bills. If the plaintiffs did not desire this future duty, there was already an end to the service. The attorney's implied promise to perform, like any other promise, was also subject to the statute of limitations, and if not demanded within six years, he was not bound to perform it. If it was the attorney's duty to perform further service without demand, then there is no evidence in the case of his performance of this duty. If the client in all that time neither paid him for what he had done, nor tendered him pay for the future, he owed the client no further duty. The obligations are, and should be, reciprocal. If the statute applies against one, it applies against the other. That has been adjudged. It was held in Stafford agt. Richardson, (15 Wend., 302,) that the attorney owed no duty to his client at the end of six years not even to the extent of liability to pay over the money he had collected for his client in the action-and that the statute of limitations (immoral and disgraceful as it would seem to be, that an attorney should claim its advantages,) was held to be a good bar, when set up by the attorney, against such a demand by his client. If an attorney is allowed such dispensations in his own favor, I can see no good reason why he should not be subject to the same rule against him. As a general rule, in elementary authority, as to the period from which the time is to be calculated, it is from the time when the creditor could have commenced the action. (2 Parsons on Con't, 370, 372.) When was this period in the case before us? Was the attorney, after perfecting judgment for his client, bound to wait for years to see if the client would direct him to earn the prospective charges? Adams agt. Fort Plain Bank. The cases cited by the plaintiff to show a different rule, do not establish his proposition. Parsons says, (vol. 2, 373.) The statute does not begin to run against the claim of an attorney for professional services until he no longer acts in that matter as attorney." These dates, from which he longer acted, the referee has given, in each of the cases, where costs are claimed. We may imply that the statute then begins to run. If this is the period, the referee has correctly held upon that point. Some of the cases cited by the plaintiff are more unfavorable to him than the rule is stated in Parsons. In the case of Vansanden agt. Brown. (9 Bing., 402,) the holding is, that the attorney is not compelled to wait the end of the suit before he can proceed against his client to recover his costs. So the case of Whitehead agt. Lord, (cited from 11 Eng. L. & E., 587,) holds no doctrine contrary to this. The suit in that case was depending-had not been brought to a decision and decree; and it was correctly held that the first costs incurred in the action, though it had been permitted to rest more than six years, were not barred. The contract was entire, and PARKE, Baron, said the attorney could not bring his action till the termination of the suit. Though it was conceded that there were exceptions to that rule, yet it was not denied that at the termination he could sue. Nor does a case that I have found hold to a different rule. I think the referee correctly decided this point. No errors have been committed, that I can perceive, upon this point, against the plaintiff. Judgment should be affirmed. [It is understood that the plaintiff has brought an appeal in this case to the court of appeals.] Howard agt. Holbrook. NEW YORK SUPERIOR COURT. JOHN T. HOWARD and another agt. WILLIAM R. HOLBROOK and E. T. HOLBROOK, executors, &c. An agreement as follows: "For value received, I hereby guaranty to Messrs. J. Howard & Son, that the bond of the Newfoundland Electric Telegraph Co., No. 17, for £200 sterling, shall be of the value of $960 on the 7th of March, 1855, at which price and at which date I will purchase the same, if offered to me. March 8, 1853. D. B. Holbrook" Held, to be good as an original undertaking or agreement; and as an agreement within the statute of frauds, it was good on its face, according to the case of Miller agt. Cook, (22 How. Pr. R., 66.) Where it was proved by a witness, not discredited, that he presented the bond (No. 17) on the 7th of March, 1855, at the testator's (D. B. Holbrook) place of business, he not being there and being represented to be out of town; that he subsequently called and found there a person who answered to that name, who acknowledged the guaranty to be his, but said that he could not redeem it, and who on being told that the witness had been there twice before, said that he had been out of town, Held, that as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted that he had been out of town and did not suggest that he had not nevertheless been out of the state, the evidence was prima facie sufficieht to show that his absence was conceded to be such as made a tender to him personally, excusable. (ROBERTSON, J., dissenting.) General Term, March, 1862. BOSWORTH, Ch. J., MONCRIEF and ROBERTSON, J. J. In this case, which was tried in November last, the plaintiffs had a verdict, and the judgment was stayed that the exceptions might be heard in the first instance at the general term. The action was brought upon the following agreement: "For value received, I hereby guaranty to Messrs. J. Howard & Son, that the bond of the Newfoundland Electric Telegraph Co., No 17, for £200 sterling, shall be of the value of $960 on the 7th of March, 1855, at which price and at which date I will purchase the same, if offered March 8th, 1853. D. B. Holbrook." to me. The plaintiff's counsel, after the formal evidence, proved Howard agt. Holbrook. the presentation of the bond on the 7th of March, 1855, at the office of D. B. Holbrook, he being absent therefrom, and its subsequent presentation to a person at that office who called himself D. B. Holbrook and acted as such, and his refusal to purchase it. The defendants' counsel claimed that the words "for value received" were an insufficient expression of the consideration, and that the agreement should be construed as a guaranty, and not an agreement of sale. The defendants offered no evidence. The plaintiffs' counsel insisted that it was optional with the plaintiffs to treat the agreement as a guaranty or an agreement of sale. The remaining facts sufficiently appear in the opinion of the court. ALEXANDER W. BRADFORD, for the appellants. BOSWORTH, Ch. J. The instrument of March 8, 1853, signed by the testator, is, on its face, a valid contract. As an original undertaking or agreement, the point is free from difficulty; as an agreement within the statute of frauds, it is good on its face, according to the recent case of Miller agt. Cook, (22 How. Pr. R., 66.) The admission of the deposition of Norris is not an error authorizing a new trial. If the agreement, on its face, expressed sufficiently a consideration that made it obligatory, proof of the actual consideration could not possibly prejudice the defendants. The charge of the judge is not given. It should be presumed to have related to the only question of fact that could be properly submitted, viz: whether the witness Keeler actually presented the bond (No. 17) to the testa tor, and he refused to redeem it, stating that "he had not got the money," &c. &c. The witness is quite confident that he presented it on the 7th of March, 1855, at the testator's place of business, he not being there and being repVOL. XXIII. 5 Howard agt. Holbrook. resented to be out of town; that he subsequently called and found there a person who answered to that name, who acknowledged the guaranty to be his, but said that he could not redeem it, and who, on being told that the witness had been there twice before, said that he had been out of town. If the evidence was insufficient to be submitted to a jury, a new trial should be granted, as the court refused to dismiss the complaint, and the defendants excepted. It may be that a tender to the testator personally was indispensable, even though he was out of town, if within the state. (Smith agt. Smith, 2 Hill R. 351; Watson agt. Hetherrington, 1 Car. & H. R., 36.) But as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted that he had been out of town, and did not suggest that he had not nevertheless been out of the state, I think the evidence is prima facie sufficient to show that his absence was conceded to be such as made a tender, to him personally, excusable. There was no attempt made by the defendants to prove that he was not out of town, or was within the state. Evidence that on two or three occasions, when the witness first called at the testator's place of business, he was told that the testator was out of town, and that there was no one there to represent him, and that subsequently he found there a person answering to the name, who said he was the man and admitted the contract to be his, but refused to pay the money, is competent to go to a jury upon the question of his identity, and sufficient to uphold a verdict in the absence of all evidence tending to raise any suspicion of mistake or collusion. (Roden agt. Henry Thomas Hyde, 4 Ad. & El. N. S. R., 626; Mineta agt. Wolfhausen, 2 C. & K. R., 744; Hunt agt. Maybee, 3 Seld. R., 270, 271; Hatcher agt. Rocheleau, 18 N. Y. R., 86, 92–96.) The fact asserted by the witness, that he called at Mr. |