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General provisions as to the Time of Commencing Actions.
SECTION 99. When action deemed commenced,
100. Exception, defendant out of State.
$ 99. [79.] (Am’d 1849, 1851.) When action deemed commenced.
An action is commenced as to each defendant when the summons is served on him, or on a co-defendant who is a joint contractor or otherwise united in interest with him.
An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided; as, if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.
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$ 100. [80.] (Am'd 1849, 1861.) Exception, defendant out of State.
If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of such person into this State; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.
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§ 101. [81.] (Am'd 1849, 1851, 1852.) Exceptions, persons under disabilities.
If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued, either,
1. Within the age of twenty-one years ; or, 2. Insane; or,
3. Imprisoned on a criminal charge; or, in execution under the sentence of a criminal court, for a term less than his natural life; or,
4. A married woman; the time of such disability is not a part of the time limited for the commencement of the action; except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability
$ 102. [82.] (Am’d 1849.) Death of person entitled before limitation expires.
If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrator after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.
§ 103. [83.] Actions by aliens.
When a person shall be an alien subject or citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period limited for the commencement of the action,
§ 104. [84.] (Am’d 1863.) Where judgment reversed.
If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or, if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal.
$ 105. [85.] (Am’d 1849.) Time of stay by injunction, &c.
When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.
$ 106. [86.] Disability must exist when right of action accrued.
No person shall avail himself of a disability, unless it existed when his right of action accrued.
$ 107. [87.] (Am’d 1849.) Where several disabilities, all must be removed.
When two or more disabilities shall co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed.
§ 108. [88.] This title not applicable to bills, &c., of corporations, or to bank notes.
This title shall not affect actions to enforce the payment of bills, notes, or other evidences of debt, issued by moneyed corporations, or issued or put in circulation as money.
§ 109. [89.] (Am’d 1849.) Nor to actions against directors, &c., of moneyed corporations or banking associations. Limitation in such cases prescribed.
This title shall not affect actions against directors or stockholders of a moneyed corporation, or banking associations, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created.
$ 110. [90.] (Am’d 1849.) Acknowledgment or new promise must be made in writing.
No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the
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CODE OF PROCEDURE.
operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.
Parties to Civil Actions.
SECTION 111. Party in interest to sue. Action by grantee of land held ad
§ 111. [91.] (Am’d 1849, 1851, 1862.) Action to be by party in interest. Action by grantee of land held adversely.
Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.
But an action may be maintained by a grantee of land in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision.
$ 112. [92.] (Am’d 1849.) Assignment of thing in action.
In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.
$ 113. [93.] (Am'd 1851.) Action by executor, trustee, &c.
An executor or administrator, a trustee of an express trust, or a person expressly authorized by statuté, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another,
§ 114. [94.] (Am’d 1851, 1857.) Action by and against a married
When a married woman is a party, her husband must be joined with her, except that,
1. When the action concerns her separate property, she may sue alone; a la sued by acant ss.
2. When the action is between herself and her husband, she may sue or be sued alone. *
And in no case need she prosecute or defend by a guardian or next friend.
$ 115. [95.] (Am'd 1849.) Infant to appear by guardian.
When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.
lude sis.at Chants § 116. [96.] (Am'd 1851, 1852, 1862, 1863.) Appointment of guardian.
The guardian shall be appointed as follows:
1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.
2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application