Exception, defendant out tion be defendant, to the Sheriff or other officer of the County in which A. D. 1870. such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. SEC. 123. 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 of State. 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, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. Exceptions, persons under SEC. 124. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a Sheriff or disabilities. 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; 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 ceases. son entitled SEC. 125. If a person entitled to bring an action die before the expira- Death of pertion of the time limited for the commencement thereof, and the cause of before limitaaction survive, an action may be commenced by his representatives, after tion expires. 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. Action of ali SEC. 126. 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 ens. war shall not be part of the period limited for the commencement of the action. Where judgment revers SEC. 127. If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or, ed." if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal. Time of stay &c. SEC. 128. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the by injunction, injunction or prohibition shall not be part of the time limited for the commencement of the action. SEC. 129. No person shall avail himself of a disability, unless it existed when his right of action accrued. SEC. 130. 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. Disabilitynot available. Co-existing disabilities. SEC. 131. This title shall not affect actions to enforce the payment of &c. Bills, notes, A. D. 1870. to affect ac bills, notes, or other evidences of debt, issued by moneyed corporations, or issued or put in circulation as money. SEC. 132. This title shall not affect actions against Directors or stockThis title not holders of a moneyed corporation, or banking associations, to recover & tions against 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. Directors Acknowl new promise SEC. 133. No acknowledgment or promise shall be sufficient evidence edgment or of a new or continuing contract, whereby to take the case out of the must be made operation of this title, unless the same be contained in some writing in writing. signed by the party to be charged thereby; but this Section shall not alter the effect of any payment of principal or interest. Ac tee of land TITLE III. PARTIES TO CIVIL ACTIONS. SEC. 134. Party in interest to sue. Action by grantee of land held adversely. 135. Assignment of thing in action. 136. Actions by executor, trustee, &c. 137. Actions by and against married women. 138. Infants, actions by and against. 139. Guardian, how appointed. 140. Who may be plaintiffs. 141. Who may be defendants. 142. One or more may sue or defend for all. 143. One action against the different parties to bills and notes. 144. Action, when not to abate. 145. Court to decide controversy, &c. Interpleading. SEC. 134. Every action must be prosecuted in the name of the real Action to be party in interest, except as otherwise provided in Section one hundred interest and thirty-six; but this Section shall not be deemed to authorize the astion by gran- signment of a thing in action not arising out of contract. But an acheld adverse- tion may be maintained by a grantee of land in the name of the grantor, or his or her heirs or legal representatives, 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. ly. action. SEC. 135. In the case of an assignment of a thing in action, the action Assignment by the assignee shall be without prejudice to any set-off or other defence of a thing in 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. SEC. 136. An executor or administrator, a trustee of an express trust, Action by ex- or a person expressly authorized by statute, may sue, without joining ecutor, trus- with him the tee, &c. for whose benefit the action is prosecuted. A trusperson tee 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. A. D. 1870. SEC. 137. When a married woman is a party, her husband must be Action by and joined with her, except that, 1. When the action concerns her separate property, she may sue or be sued alone: Provided, That neither her husband nor his property shall be liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were sole. 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. SEC. 138. 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 Probate Judge. SEC. 139. 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 an 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 of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State; if he has none, then to the infant himself, if over fourteen years of age, and within the State; or, if under that age, and within the State, to the person with whom such infant resides. And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this State, or is temporarily absent therefrom, the plaintiff' may apply to the Court in which the action is pending, at any stated or special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the Court shall give special directions in the order for the manner of the service thereof, which may be upon the infant. And in case an infant-defendant having an interest in the event of the action shall reside in any State with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the Court, the Court may appoint a guardian ad litem for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem process, pleadings and notices in the action may be served in the like manner as upon a party residing in this State. against a married woman. Infant to appear by guar Appointment of guardian. A. D. 1870. Who to be plaintiffs. defendant. SEC. 140. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. SEC. 141. Any person may be made a defendant who has or claims an Who to be interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such actions. joined, &c. SEC. 142. Of the parties to the action, those who are united in interest Parties to be must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the Court, one or more may sue or defend for the benefit of the whole. suits. Action abate. SEC. 143. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff. SEC. 144. No action shall abate by the death, marriage, or other disOf existing ability of a party, or by the transfer of any interest therein, if the cause when not to of action survive or continue. In case of death, marriage, or other disability of a party, the Court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the Court may allow the person to whom the transfer is made to be substituted in the action. determine a &c. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. At any time after the death, marriage, or other disability of the party plaintiff, the Court in which an action is pending, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discretion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the Court, not less than six months nor exceeding one year from the granting of the order. SEC. 145. The Court may determine any controversy between the parCourt may ties before it, when it can be done without prejudice to the rights of controversy, others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the Court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract, or for specific, real, or personal property, may at any time before answer, upon affidavit that a person not a party to the action, and without collusion by him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the Court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in Court the amount of the debt, or delivering the property or its value to such person as the Court may direct; and the Court may, in its discretion, make the order. A. D. 1870. Interpleader. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. SEC. 146. Actions to be tried where subject-matter situated. where SEC. 146. Actions for the following causes must be tried in the County Actions to bo in which the subject of the action, or some part thereof, is situated, sub- tri subject matject to the power of the Court to change the place of trial, in the cases provided by statute: 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property; 2. For the partition of real property; 3. For the foreclosure of a mortgage of real property; 4. For the recovery of personal property distrained for any cause. ter situated. tried where SEC. 147. Actions for the following causes must be tried in the County Action to be where the cause, or some part thereof, arose, subject to the like power of cause of acthe Court to change the place of trial, in the cases provided by statute: tion arose. 1. For the recovery of a penalty or forfeiture imposed by statute, except that, when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more Counties, the action may be brought in any County bordering on such lake, river, or stream, and opposite to the place where the offence was committed; 2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do anything touching the duties of such officer. Action to be tried where SEC. 148. In all other cases the action shall be tried in the County in which the parties, or any of them, shall reside at the commencement of parties reside the action; or, if none of the parties shall reside in the State, the same may be tried in any County which the plaintiff shall designate in his complaint, subject, however, to the power of the Court to change the place of trial, in the cases provided by statute. SEC. 149. If the County designated for that purpose in the complaint be not the proper County, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, de Change of place of trial. |