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5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereinafter enumerated.
6. An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting the fraud.
A surrogate's decree for a money payment would form the basis of an action at law, and, not being the decree of a court of record unless suit be brought therein in six years, the statute of limitations may be set up as a bar. In the matter of the estate of Delacroix, deceased. 1 Bradford's Surrogate Rep., 1.
The fifty-first section of the chapter of the revised statutes relative to the limitation of actions, which provides that bills for relief on the ground of fraud shall be filed within six years after the discovery by the aggrieved party of the facts constituting such fraud, and not after that time, applies to bills for relief on the ground of fraud in all cases, and is not confined to cases where the jurisdiction of equity was exclusive. Mayne v. Griswold, 3 Sand. S. C. R., 463.
§ 92. [72.] (Amended 1849.) Three years.-Within three years:
1. An action against a sheriff, coroner, or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape.
2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this State, except where the statute imposing it prescribes a different limitation.
§ 93. [73.] Two years. Within two years:
1. An action for libel, slander, assault, battery, or false imprisonment.
2. An action upon a statute, for a forfeiture or penalty to the people of this State.
§ 94. [74.] One year.-Within one year :
1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process.
$95. [75.] (Amended 1849.) Action upon a current account. -In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deem
ed to have accrued from the time of the last item proved in the account on either side.
An account, in which part of the items are within six years, and part of them beyond six years, is not saved by the former from the operation of the statute of limitations against the latter, where there are no items of account on the other side. There must be items of account on both sides to make a mutual account; and it is only in mutual accounts that an item within six years saves those not within six years from being barred by the statute. Hallock v. Losee, 1 Sand. S. C. R., 220; and see Ogden v. Astor, 4 Sand. S. C. R., 312.
§ 96. [76.] Actions for penalties, &c.-An action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter in behalf of the people of this State, by the attorney-general, or the district-attorney of the county where the offence was committed.
§ 97. [77.] Actions for other relief.-An action for relief, not herein before provided for, must be commenced within ten years after the cause of action shall have accrued.
See Elwood v. Diefendorf, 5 Barb. S. C. R,398.
§ 98. [78.] (Amended 1849.) Actions by the people.—The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State, or for their benefit, in the same manner as to actions by private parties.
General Provisions as to the time of commencing Actions.
SECTION 99. When action deemed commenced.
100. Exception, defendant out of State.
101. Exception, as to person under disabilities.
102. Death of person entitled before limitation expires.
103. Suits by aliens.
104. Where judgment reversed.
105. Stay of action by injunction, &c.
106. Disability must exist when right accrued.
107. Two or more disabilities.
108. This title when not to apply.
109. The like.
110. New promise must be in writing.
§ 99. [79.] (Amended 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; or, 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.
Section 99 of the code of 1849, was as follows:
"An action shall not be deemed commenced, within the meaning of this title, unless it appear:
"1. That the summons or other process therein was duly served upon the defendants, or one of them; or,
"2. That the summons or other process was delivered, with the intent that it should be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided; or, 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 an action shall be deemed commenced for all purposes, at the time the complaint is verified, provided that the summons or other process thereupon issued be delivered to the sheriff or other officer on the same or next five succeeding days, and be followed by the actual service thereof on the defendants, or one or more of them."
The amendment to this and the next succeeding section is that recommended by the codifiers' report of 1850 (civil code, s. 582); and in a note, it is said: "This section and the next are changed in phraseology, so as to avoid the incongruity of the former provision, which allowed two modes of commencing an action, inconsistent with each other." See section 127 of this code.
In Vredenburg v. Biggs, 3 How. Spe. T. R., 316, it was held under the code of 1848, that commencing an action and obtaining a judgment against one joint debtor, did not take the case out of the statute as to the other debtor. Under the present wording of the section, it may be that it would be held otherwise.
For the purpose of issuing a warrant under the non-imprisonment act, the action is sufficiently commenced by lodging the summons with the sheriff, with the intent that it should served. Gregory v. Weiner, 1 Code Rep. N. S., 210. Under the Code of 1848, it was otherwise. Lee v. Averill, 1 Code Rep., 73; 1 Sand. S. C. R,, 731.
§ 100. [80.] (Amended 1849, 1851). 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 times 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 the 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.
Section 100 of the code of 1849 was as follows:
"If, when the cause of action shall accrue against a person, he be out of the State, the action may be commenced within the term herein limited, after his return to the State; and if after the cause of action shall have accrued, he depart from the State, the time of his absence shall not be part of the time limited for the commencement of the action."
Successive absences may be accumulated, and the aggregate deducted from the time of limitation. Ford v. Babcock, 2 Sand., S. C. R., 519, overruling Cole v. Jessup, 2 Barb. S. C. R., 309.
The statute applies to non-residents. Ford v. Babcock, supra.
In Bogert v. Vermilya (1 Code Rep. N. S., 212), it was held, at a general term of the supreme court, that in an action against one of two joint and several obligors, where, to a plea of the statute of limitations it is replied, that the defendant had been abroad, and the suit had been brought within six years, excluding the time of his absence, it is no defence to aver and prove that the other obligor had been during the whole time within the State. The liability of the contractors being several, as well as joint, the statute of limitations may apply as to one, and not as to the others; and see 2 Coms., 523.
§ 101. [81.] (Amended 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 ceases.
It will be observed that this section does not apply to actions for the recovery of real property, or for a penalty or forfeiture, or against a sheriff or other officer.
The words in italics are taken from the codifiers' report of 1850 (Civil Code, s. 571), and the reason there given for the amendment is, that "actions can be brought by persons under disability, and the rights of persons in possession require they should be brought or abandoned. It will be remembered that the operation of this provision is prospective, and affects no rights already accrued." See section 73.
§ 102. [82.] (Amended 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.
See Bucklin v. Ford, 5 Barb. S. C. R., 393.
§ 103. [83.] Actions by Aliens.-When a person shall he 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.] Where judgment reversed.-If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff 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.
See Long v. Fatheree, 7 Sme. & M., 404.
§ 105. [85.] (Amended 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.] (Amended 1849.) Where several disabilities, all must be removed.-When two or more disabilities shall coexist at the time the right of action accrues, the limitation shall not attach until they all be removed.
See section 101.
§ 108. [88.] This title not applicable to bills, &c., of corpo