TITLE 2. Action against a non-resident, upon § 390. Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a perwho is not then a resident of the State, an action cannot be brought a demand thereon in a court of the State, against him or his personal representathe law of tive, after the expiration of the time, limited, by the laws of his resihis residence, for bringing a like action, except by a resident of the State, and in one of the following cases: barred by dence. When per son liable, etc., dies son, 1. Where the cause of action originally accrued in favor of a resident of the State. 2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was or became a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. $ 391. If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expirawithout the tion of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. State. Cause of action ac death of a and the grant of letters. § 392. For the purpose of computing the time, within which an cruing be action must be commenced in a court of the State, by an executor or tween the administrator, to recover personal property, taken after the death of a testator or testator or intestate, and before the issuing of letters testamentary or intestate, letters of administration; or to recover damages for taking, detaining or injuring personal property within the same period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof: in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. No limita tion of action on § 393. This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt, issued by a moneyed corporabank notes, tion, or issued or put in circulation as money. etc. Action rectors, etc., of § 394. This chapter does not affect an action against a director or against di- stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such an action must be brought within three years after the cause of action has accrued. banks. Acknowl new prom. § 395. An acknowledgment or promise, contained in a writing signed edgment or by the party to be charged thereby, is the only competent evidence of ise must be a new or continuing contract, whereby to take a case out of the operain writing. tion of this title. But this section does not alter the effect of a payment of principal or interest. Exceptions $396. If a person, entitled to maintain an action specified in this as to peer title, except for a penalty or forfeiture, or against a sheriff or other disabili- officer for an escape, is, at the time when the cause of action accrues, sons under ties. either: 1. Within the age of twenty-one years; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; TITLE 3. The time of such a disability is not a part of the time, limited in this title for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or, in any case, more than one year after the disability ceases. § 397. A cause of action, upon which an action cannot be maintained, Defence or as prescribed in this title, cannot be effectually interposed as a defence claim. or counterclaim. counter TITLE III. General provisions. SECTION 398. When action deemed to be commenced. 399. Attempt to commence action in a court of record. 401. Exception, when defendant is without the State. 402. Id.; when a person, entitled, etc., dies before limitation expires. 404. In suits by aliens, time of disability in case of war to be deducted. 405. Provision where judgment has been reversed. 406. Stay by injunction, etc., to be deducted. 407. Certain actions by a principal, for misconduct of an agent, etc. 408. Disability must exist when right accrues. 409. If several disabilities, no limitation until all removed, 410. Provision when the action cannot be maintained without a demand. 411. Provision in case of submission to arbitration. 412. Provision when action is discontinued, etc., after answer. 413. How objection taken, under this chapter, tion § 398. An action is commenced against a defendant, within the When acmeaning of any provision of this act, which limits the time for com- deemed to mencing an action, when the summons is served on Lim; or, on a be com co-defendant who is a joint contractor, or otherwise united in interest with him. menced. commence record. § 399. An attempt to commence an action, in a court of record, is Attempt to equivalent to the commencement thereof against each defendant, action in a within the meaning of each provision of this act, which limits the time court of for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant or one of two or more co-defendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant sought to be charged, or by the first publication of the summons, TITLE 3. Id.; in a court not as against that defendant, pursuant to an order for service upon him in that manner. $ 400. The last section, excluding the provision requiring a publicaof record. tion or service of the summons within sixty days, applies to an attempt to commence an action in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due diligence. Exception, when de State. § 401. If, when the cause of action accrues against a person, he is fendant is without the State, the action may be commenced within the time limwithout the ited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from and resides without the State, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time, limited for the commencement of the action. But this section does not apply while a designation made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two of this act remains in force. Id.; when a person entitled, itation ex § 402. If a person, entitled to maintain an action, dies before the exetc., dies piration of the time limited for the commencement thereof, and the cause before lim of action survives, an action may be commenced by his representative, pires. after the expiration of that time, and within one year after his death. Id.; when § 403. The term of eighteen months after the death, within the liable, etc., State, of a person, against whom a cause of action exists, is not a part dies within of the time limited for the commencement of an action against his a person the State. In suits by aliens time cxecutor or administrator. If letters testamentary or letters of administration upon his estate are not issued, within the State, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued, is not a part of the time limited for the commencement of such an action. § 404. Where a person is disabled to sue in the courts of the State, of disabil by reason of either party being an alien subject or citizen of a country ity in case at war with the United States, the time of the continuance of the disabe deduct- bility is not a part of the time limited for the commencement of the of war to ed. Provision where has been reversed. action. § 405. If an action is commenced within the time limited therefor, judgment and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination. Stay by in§ 406. Where the commencement of an action has been stayed by junction, etc., to be injunction, or by other order of a court or judge, or by statutory prohibideducted. tion, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. tions by a duct of an Certain ac- § 407. Where an injury results from the act or omission of a deputy principal, or agent, the time, within which an action to recover damages by reason for miscon- thereof, must be commenced by the principal, against the deputy or agent, etc. agent, must be computed from the time, when a judgment against the principal, for the act or omission, is first recovered by the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time. § 408. A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued. TITLE 3. Disability must exist when right § 409. Where two or more disabilities co-exist, when the right of accrues. action or of entry accrues, the limitation does not attach, until all are If several removed. disabilities, no limitation until all re when the action can not be § 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must moved. be commenced, must be computed from the time, when the right to Provision make the demand is complete; except in one of the following cases: 1. Where the right grows out of the receipt or detention of money maintained or property, by an agent, trustee, attorney, or other person acting in a without fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends. 2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand. demand. in case of tion. § 411. Where the persons, who might be adverse parties in an action, Provision have entered into a written agreement to submit to arbitration, or to submission refer the cause of action, or a controversy in which it might be avail- to arbitra able, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. tion etc., after answer. § 412. Where a defendant in an action has interposed an answer, in Provision support of which he would be entitled to rely, at the trial, upon a de- Won is dis fence or counterclaim then existing in his favor, the remedy upon which, continued, at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him. § 413. The objection, that the action was not commenced within the How obtime limited, can be taken only by answer. The corresponding objec- taken, jection tion to a defence or counterclaim can be taken only by reply; except under this where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer. chapter. which this $ 414. The provisions of this chapter apply, and constitute the only Cases to rules of limitation applicable, to a civil action or special proceeding, chapter except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties. applies. TITLE 3. Mode of computing 2. A cause of action or a defence which accrued before the first day of July, eighteen hundred and forty-eight. The statutes then in force govern, with respect to such a cause of action or defence. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof. 4. A case, where the time to commence an action has expired, when this act takes effect. The word, "action," contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action. § 415. The periods of limitation, prescribed by this chapter, except periods of as otherwise specially prescribed therein, must be computed from the limitation. time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding. 76 |