3. An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation.

4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special proceeding instituted in a court or before a judge, brought to recover a chattel, or damages for taking, detaining, or injuring personal property, by the defendant, or the person whom he represents.

5. An action to recover damages for a personal injury, resulting from negligence.

Substitute for Co. Proc., § 92; L. 1886, ch. 272.

§ 384. [Am'd, 1896.] Within two years. Within two years:

1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, false imprisonment or malicious prosecution.

2. An action upon a statute, for a forfeiture or penalty to the people of the State.

Co. Proc., § 93, am'd. See post, § 1902. In effect April 20, 1896. L. 1896, ch. 335.

§ 385. Within one year.

Within one year:

1. An action against a sheriff or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except the non-payment of money collected upon an execution.

2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. Substitute for Co. Proc., § 94.

& 386. When cause of action accrues on 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 is deemed to have accrued from the time of the last item, proved in the account on either side.

Co. Proc., § 95.

§ 387. Action for penalty, etc., by any person who

will sue.

An action upon a statute for a penalty or forfeiture, given wholly or partly 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 is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State, by the attorney-general, or the district-attorney of the county where the offence was committed.

Id., § 96.

§ 388. Actions not before provided for.

An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.

Id., § 97.

$389. Actions by the people subject to the same limitations.

The limitations, prescribed in this title, apply alike to actions brought in the name of the people of the State, or for their benefit, and to actions by private persons.

Co. Proc., § 98.

* § 390. Action against a non-resident, upon a demand barred by the law of his residence.

Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, except by a resident of the State, and in one of the following cases:

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. [Am'd, 1877.] When person liable, etc., dies without the State.

If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expiration 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.

$ 392. [Am'd, 1877.] Cause of action accruing between the death of a testator or intestate, and the grant of letters.

For the purpose of computing the time, within which an action must be commenced in a court of the State, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or 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.

§ 393. No limitation of action on bank notes, etc. This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt issued by a moneyed corporation, or issued or put in circulation as money.

Co. Proc., 108.

* See post, § 401.

§ 394. [Am'd, 1877.]

banks.

Action against directors, etc., of

This chapter does not affect an action against a director or 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.

Co. Proc., § 109, am'd.

§ 395. writing.

Acknowledgment or new promise must be in

An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest. Id.. § 110.

§ 396. Exceptions, as to persons under disabilities. If a person, entitled to maintain an action specified in this title, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either:

1. Within the age of twenty-one years; or,

2. Insane; or,

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life;

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.

Id., § 101.

§ 397. Defence or counterclaim.

A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim.

88

TITLE III.

General provisions.

Sec. 398. When action deemed to be commenced.

399. Attempt to commence action in a court of record.

400. Id.; in a court not of record.

401. Exception, when defendant is without the State.

402. Id.; when a person entitled, etc., dies before limitation expires.

403. Id.; when a person liable, etc., dies within the State.

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.

414. Cases to which this chapter applies.

415. Mode of computing periods of limitation.

§ 398. [An'd, 1877.] When action deemed to be commenced.

An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him.

Co. Proc., 99, am'd.

§ 399. Attempt to commence action in a court of record. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act, which limits the time 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 codefendants, 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, as against that defendant, pursuant to an order for service upon him in that manner.

Id., part of § 99, am'd.

§ 400. Id.; in a court not of record.

The last section, excluding the provision requiring a publication 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.

*§ 401. [Am'd, 1888, 1896.] Exception, when defendant is without the State.

If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from the State, and remains continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the State under a false name, the time of his absence or of such residence within the State under such false name 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. Co. Proc., § 100, am'd; L. 1888, ch. 498; L. 1896, ch. 665. In effect Sept. 1, 1896. See ante, § 390.

§ 402. Id.; when a person entitled, etc., dies before limitation expires.

If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative, after the expiration of that time, and within one year after his death.

Id., § 102, am'd.

§ 403. [Am'd, 1891, 1896.] Id.; when a person liable, dies within the State.

The term of eighteen months after the death, within this state, of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to the provisions of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration upon his estate are not issued, within this 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. The time during which an action is pending in a court of record between a person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate:

1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record or under section twenty-seven hundred and eighteen of this code, after trial on the merits.

*See ante, § 390.