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ence that the period within which the action to redeem may be brought, shall be five years.

$ 18. When, by the laws of any other State or country, Foreign judgment an action upon a judgment or decree rendered in such State barred here. or country, cannot be maintained there by reason of the

lapse of time, and such judgment or decree is incapable of

being otherwise enforced there, an action upon the same Exception. cannot be maintained in this State, except in favor of a

resident thereof, who has had the cause of action from the time it accrued.

§ 19. When a cause of action has arisen in another State Cause of action or country, between residents of such State or country, or where it origi- between them and residents of another State or country, nated, & between citizens of other and by the laws of the State or country where the cause of

action accrued an action cannot be maintained thereon, by reason of the lapse of time, no action can be maintained thereon in this State.

$ 20. The provisions of this chapter shall not apply in the Trusts not braced in the press case of a continuing and subsisting trust, nor to an action by chapter, nor suits a vendee of real property in the possession thereof, to obtain session to obtain

a conveyance.(a)

$ 21. In all cases where the doing of an act necessary to Injunction or oth- save any right or benefit is restrained or suspended by inoperation of the junction or other lawful restraint, vacancy in office, absence statute suspended by.

of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, absence, or refusal to act, shall not be estimated in the application of any statute of limitations.

$ 22. Where an action has been or shall be commenced Myers' Sup.,724. in due time, and in good faith, in any court of this ComDismissal of action for want of monwealth, and the defendants, or either of them, have or interval between shall make defense, and it shall be adjudged that such court commencment of had or has no jurisdiction of the action, the plaintiff or his not computed if

be representative may, within three months from the time of in three momins: such judgment, commence a new action in the proper court,

new action

(a) Express continuing trusts, which are within the exclusive jurisdiction of courts of equity, are not affected by the statute of limitations. (L., L. & M. Ins. Co. vs. Page, 17 B. M., 451.)

2. Constructive trusts are not exempted from the operation of the statute of limitations. (Manion vs. Titsworth, 18 B. M., 601; Talbott vs. Todd, 5 Dana, 199.)

3. If a trust is openly denied, the statute of limitations will apply. (Manion vs. Titsworth, 18 B. M., 601; Bohanon vs. Streshly, 2 B. M., 439; Findley vs. Patterson, 2 B. M., 78; Roberts vs. Roberts, 7 Bush, 100.)

4. That the property in contest is trust property does not prevent the statute of limitations from running against the trustee. But whenever there is a relation of trust between the parties, limitation will not run. (Maddox vs. Aller, i Metcalfe, 498.)

new action

and the time between the commencement of the first and last action shall not be counted in applying the limitation.

ARTICLE V.
When Limitation begins to run in respect to Streets, Alleys,

&c., and Public Roads. $ 1. The limitations mentioned in the first article of this Limitation not to chapter shall not begin to run in respect to actions by any actions for recortown or city for the recovery of any street, alley, or other &c., until notice public easement, or any part of either, or the use thereof of purpose to hold

adversely. in such town or city, until the trustees, or the council or the corporation, by whatever name known or called, have been notified in writing by the party in possession, or about to take possession, to the effect that such possession will be adverse to the right or title of such town or city. Until such notice is given, all possession of streets, alleys, and public easements, or any part of either, in any town or city, shall be deemed amicable, and the person in possession the tenant at will of such town or city.

§ 2. Limitation shall not begin to run in favor of any per- So as to public son in the possession of any public road, or of any part thereof, until written notice shall be given to the county court of the county in which the road is situated, that such possession is adverse to the right of the public to the use of such road.

roads.

years, if no execution issued.

ARTICLE VI.
Surety--Time disallowedWhen Limitation begins to run in

respect to stolen Property-What sufficient promise to revive
a barred Cause of Action.
$1. A surety shall be discharged from all liability under 2 R. S., 400,

Surety discarga any judgment or decree, after the lapse of seven years with- ed from liability out any execution issued thereon, and prosecuted in good &c., after seven faith for the collection thereof.

$ 2. A surety in any bond, given in the course of any Surety in bond judicial proceeding, shall be discharged from all liability years unless suit

brought. thereon, unless suit be brought thereon within seven years after the accruing of the cause of action.

$ 3. A surety for an executor, administrator, guardian, or Surety for fiducurator, or for a sheriff to whom a decedent's estate has ed from liability been transferred, shall be discharged from all liability as 5 years, without

suit brought. such, to a distributee, devisee, or ward, when five years

what circum. stances.

article,

When and under shall have elapsed without suit, after the accruing of the

cause of action, and after the attaining of full age by the devisee, distributee, or ward; but the failure to commence action in time by one shall not affect the right of another.

§ 4. A surety in any obligation or contract, other than Surety on ordi- those provided for in the next two preceding sections, shall discharged after be discharged from all liability thereon, when seven years suit' be brought. shall have elapsed without suit thereon, after the cause of

action accrued.(a)

$ 5. The limitations given in the next four preceding secSavings and ex- tions shall not apply to so much of the time elapsed when applicationof this there was no executor, administrator, or other person au

thorized to commence an action, nor to the six months during which an action cannot be brought against a personal representative; nor to any delay assented to by the surety, in writing. And if judgment be rendered for the plaintiff, in any case provided for in those four sections, and the same be afterwards reversed or arrested, so that the plaintiff takes nothing thereby, he may commence another action within one year thereafter. And if such surety shall abscond, conceal himself, or by removal from the State, or otherwise, obstruct or hinder his being sued, the time of such obstruction shall not be computed as part of the time of limitation in said sections allowed. And if such judgment be obstructed by appeal, supersedeas, or injunction,

the time of such obstruction shall also be disallowed.(6) (a) That the payee of a note failed to sue on it for more than seven years after its maturity, in consequence of frequent requests of indulgence on the part of the surety, will not deprive him of the benefit of the statute of limitations in favor of sureties. (Coleman vs. Walker, 3 Metcalfe, 67.)

2. Seven years will bar a proceeding against one who has undertaken to pay the costs of a non-resident plaintiff. (McClure vs. McKee, 14 B. M., 265.)

3. One who resides out of the State, and becomes a surety here, will be entitled to the same benefit of limitation as sureties residing here. (Kellar vs. Stinton, 14 B. M., 308.)

4. One who signs a contract, as surety for a married woman, which she is not authorized to make, and is, therefore, void as to her, is a principal, and will not be released by the lapse of seven years without suit. (Short vs. Bryant, 10 B. M., 10; Gaines vs. Poor, 3 Metcalfe, 506.)

5. Payment by a surety of part of a debt, after he is released by limitation, will not revive the obligation to pay the balance. (Emmons vs. Overton, 18 B. M., 650.)

6. A promise to pay the debt after he is released by limitation will not be obligatory, nor prevent him from pleading and relying upon the statute. (Ibid.)

7. Proving and filing a note with the master commissioner in an action for the settlement of the estate of the principal in the note, without taking steps necessary to recover judgment on the note, cannot be regarded as a suit, and will not prevent the statute from running. (Harris vs. Moberly, 8 Bush, 556.)

(6) A surety, who removes from the State, either before or after the debt falls due, and returns occasionally for temporary purposes, not giving reasonable opportunity to the creditor to

be brought within one

year after property found;

$ 6. Actions for the recovery of stolen property may be Action for reccvcommenced against any person having had the same in pos- eres may session within one year from the time the property is found by the owner thereof, and not after; and actions for the re- and for damages covery of damages, or the value of stolen property, must be after knowledge

of the commenced against the thief or any accessory, within one fendany. year from the time of the discovery of the liability.

liability of de

CHAPTER 72.

how to be sup

LOST RECORDS, &c., HOW SUPPLIED, § 1. When any judgment or final order of any court of Record of judga record of this State remains unexecuted, and the record mutilated, '&e. thereof has been lost, mutilated, defaced, or destroyed, it plied. shall be lawful for any person interested therein, upon ten days' notice, in writing, to the adverse party, to move the court in which such judgment was rendered or final order was made to re-enter the same of record; and, upon satisfactory proof that such judgment or final order had been theretofore entered of record, that the same had been mutilated, defaced, or destroyed, and the purport thereof, it shall be the duty of the court to re-enter the same of record; Effect of; unless

contested, no cost which judgment or final order so entered shall have the same effect as the original to all intents and purposes, and official copies thereof shall be received as evidence for all purposes for which like copies of the original, if in existence, would be competent. No judgment for costs shall be rendered against the defendant in such motion, unless he shall controvert the plaintiff's right, and fail in his defense.

§ 2. When any delivery, sale, forthcoming, replevin, or Bonds having the other bond, having the force and effect of a judgment, has mendidost

, how

supplied been lost, destroyed, mutilated, or defaced, it shall be lawful for any person interested therein, upon ten days' written sue, will not be entitled to the benefit of the statute while thus absent. (Bennet vs. Dei'lin, 17 B. M., 359 to 362.)

2. A temporary absence will not prevent the statute from running; for, notwithstanding his absence, the payee might have brought his action; and although a personal service of the writ might not have been obtained, such proceedings could have been had as would have authorized a recovery. (Ormsby vs. Lether, 3 Bibb, 270-1.)

3. A promise made by a surety to a confiding creditor, that the debt should be paid at a named day, which the creditor relied upon, is such an obstruction and hindrance as is embraced by the statute. (Walker vs. Sayers, &c., 5 Bush, 579.)

thereon & effect

lost, &c., how

bond required.

notice to the adverse party, to move the court in which such The proceedings bond was on file to award execution thereon; and upon sat

isfactory proof that such bond had existed, that the same had been lost, destroyed, mutilated, or defaced, the purport thereof, and that the same remains undischarged, it shall be the duty of the court to award execution thereon, indorsed as though execution were issued on such bond, if in existence; but no judgment for costs shall be rendered against the defendant in such motion, unless he shall controvert the plaintiff's right to an execution and fail in his defense.

§ 3. If an order of the county court, appointing an adOrder of county ministrator or guardian, or appointing any person to any court appointing Of such fiduciary place, station, or trust; or, if the bond executed in the supplied or new

county court by any such person, or by an officer, shall be destroyed, obliterated, or lost, the court shall, by the appropriate proceeding, due notice thereof being given, supply the record, and require such person to execute a new bond, with good and sufficient sureties; and on his failure to do so, shall enter up an order vacating his office or station.

$ 4. If the records or papers of any court shall be lost, commis- destroyed, defaced, or obliterated, such court shall appoint pointed. a commissioner, who shall have power and authority to fix

on a convenient place to meet and sit, from time to time, giving reasonable public notice thereof.

§ 5. The commissioner may, at the instance of any perPowers and duty son, issue a summons and cause the attendance of witnesses,

and take evidence, in writing, of such witnesses, relative to any record or paper so destroyed, defaced, or obliterated; which deposition shall be legal evidence, and shall be returned to the clerk of the court, and safely kept by such clerk. Before any such proof is taken, the party offering it must make and file with the commissioner an affidavit that there is no attested copy of such record or papers in existence known to him. If such affidavit is not made, no testimony taken shall be evidence. The commissioner shall not remain in office longer than one year.

$ 6. The commissioner shall be paid a reasonable comCompensation. pensation for his service, out of the county levy.

$ 7. When any record book, containing judgments, deRose of illegibles crees, orders, executions, or proceedings of a court, shall berite merected to be lost, destroyed, or become illegible, and the same can be

sioner to be ap

of commissioner,

Acts 1863, 16.

Record

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