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Scovil agt. Scovil.

from the time the plaintiff might have sued, and such is the statute (Code, §§ 74, 91).

2. By section 102 of the Code, the action was barred by lapse of time. Plaintiff did not begin his suit after the expiration of six years, and within one year after letters were issued to defendants.

3. The 102d section of the Code contains the existing rule. It has superceded the eighteen months provision of the Revised Statutes. The 73d section of the Code, in express terms repeals the chapter of the Revised Statutes, "of actions and the times of commencing them," and declares title 2 of the Code is substituted in its place. In the chapter (3 R. S. chap. 4, title 2, art. 2, § 26, p. 297, original paging) "of actions and the time of commencing them," is a provision that if a person die before the six years, and the cause of action survives, his executors, &c., may after the expiration of the six years, and within one year after the death, sue, and not after that period. There is a similar provision in 3 Revised Statutes, chapter 8, title 3, article 1, section 9, page 448, original paging, "of suits by and against executors and administrators, &c." Both of these provisions are carried into section 102 of the Code, in the first period. Section 8, page 448, in same chapter, is the eighteen months provision which relates to the suing of executors and administrators. This provision is revised by the last period of section 102 of the Code. It was evidently the intention of the legislature to revise, and it did revise the subject of limitation of actions, by title 2 of the Code, and of actions brought by and against executors and administrators, by section 102 of that title. By the revision of the law on the subject, all former provisions are repealed, whether expressly stated or not. In Smith's Com. (p. 904, §§ 786, 787), it is said: If a revising statute embrace all the provisions of antecedent law on the same subject, and reduce them to one system, such revising statue repeals the statutes revised, without any

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Scovil agt. Scovil.

express provision to that effect. In Sedgwick on Stat. and Cons. Law (p. 126), it is laid down, a statute is impliedly repealed by a subsequent one revising the whole subject matter. To the same principle substantially are 5 Hill, 221; 16 Barb. 15.

If the eighteen months provision of the Revised Statutes, and section 102 of the Code are both claimed to stand, then we have two different rules on the same subject inconsistent with each other. By the Revised Statutes, if the suit is not commenced within the eighteen months after the death, the statute attaches. The creditor must, therefore, see that letters are issued within that time. By section 102 of the Code, the creditor has no care of seeing that letters issue. He can sue within one year after they are issued, if there is a delay of fifty years in taking them out by the next of kin. The last rule must be the existing rule.

II. The answer is sufficient to present the defence of the statute of limitations. The 102d section of the Code, like section 8, 2 Revised Statutes, 448, is a statute "of evidence or computation." (24 Wend. 488; 1 Den. 151.) But if the answer was defective, it is too late to raise the question after verdict. It will be deemed to have been amended to conform to the facts, proved, or the court if necessary will order it to be amended nunc pro tunc. (Code, §§ 169, 170; 36 Barb. 29, and cases cited; 1 Kern. 237; 1 Abb. Dig. p. 105, No. 385, citing many cases more.)

At this stage of the case the court can only look into the special verdict, and give judgment upon the facts found by it. The legal consequences which flow from these facts is all the court has to decide (Code, § 260).

LEVI H. BROWN, for plaintiff and respondent.

The only

The facts appear in the special verdict. defence interposed to the action by answer, was the six

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