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GENERAL PROVISIONS AS TO THE TIME OF COMMENCING
SECTION 79. When action deemed to have been commenced.
80. Exception, where defendant is out of the state.
Limitation, in such cases, prescribed. 90. New promise must be in writing. § 79. An action shall not be deemed commenced, within the meaning of this title, unless it appear :
1. That the summons therein was duly served upon the defendants, or one of them ; or
2. That the summons was delivered, with the intent that it should be actually served, to the sheriff of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff 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.
This section is the same in principle, as the provision of the Revised Statutes, which enacts as follows:
“No action for the recovery of any debt, demand or dam ages only, or for the recovery of any penalty or forfeiture, shall be deemed to have been commenced within the meaning of this chapter, unless it appear, 1. That the first process or
proceeding therein was duly served upon the defendants, or some or one of them : or, 2. That a capias ad respondendum was issued within the time required by law, to the sheriff of the county in which the defendants, or some or one of them usually resided, or last resided, in good faith and with intent to be actually served ; and that such writ was duly returned : 3. If a corporation be defendant, that the first process was in like manner issued to the sheriff of the county in which such corporation was located by law, or in which the place of transacting its business was situated, with the intent to be actually served; and that such process was duly returned. (2 R. S., 3d ed., 397, sec 38.)
The proposed section differs in this, that it extends the rule to all actions, and is based upon the uniform mode of commencing them provided by section 106.
It is proper here to remark, that immediately following the provision of the Revised Statutes, just quoted, there were two sections designed to give it more complete effect, and which are as follows:
" When a suit shall be alleged by a plaintiff to have been commenced within the time required by law, and such allegation shall be put in issue by the defendant, it shall be competent for the defendant to prove, on the trial, that the process issued by the plaintiff was not issued with the intent, and in the manner required by law; or that it was issued to the sheriff of one county, when the plaintiff knew, or had reason to believe, that the defendant was in another county and could have been arrested; or that any means whatever were used by the plaintiff, or his attorney, to prevent the service of the writ, or to keep the defendant in ignorance of the issuing thereof.” (2 R. S. 3d ed. 397, sec. 39.)
“Upon any such malter being established, or upon its appearing in any other way that any process was issued without any intent that it should be served, such service shall not be deemed the commencement of a suit, within the meaning of any of the provisions of this chapter.” (Ibid. sec. 40.)
It appears to us, that the matters aimed at by these enactments, so plainly result from the provision contained in the proposed section, as well as from that of the Revised Statutes, upon which it is founded, as to render their insertion unnecessary. If the suit must be commenced in good faith, as expressly prescribed, it is certainly needless to provide, that, when the question arises, (as it can alone arise,) on the trial, the fact of the action being so commenced must be proved by the plaintiff, or that it may be controverted by the defendant. We have omitted them, because of our earnest desire, not merely to provide as simple a system of remedies, as possible, but to disembarrass the subject of all unnecessary detail.
§ 80. 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 and reside out of the state, the time of his absence shall not be part of the time limited for the commencement of the action.
Same as 2 R. S. 3d ed. 395, sec. 27.
§ 81. If a person entitled to bring an action except for a penalty or forfeiture, 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 shall not be part of the time limited for the commencement of the action.
Same as 2 R. S. 3d ed. 394, sec. 24.
§ 82. 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, his representatives may commence the action, after the expiration of that time, and within one year from his death.
§ 83. 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.
The last two sections are the same as 2 R. S. 3d ed. 395, sec. 26; 396, sec. 32; excepting that they apply to all actions, instead of being confined, as in the corresponding provisions of the Revised Statutes, to actions relating to real property, or for the recovery of a debt or demand, or for damages only.
§ 84. 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.
Same as 2 R. S. 3d ed. 396, sec. 33; except that it provides for the case of a reversal of a judgment only, and not for the case of an arrest of judgment, as in the corresponding provision of the Revised Statutes. The reason of this difference is, that with a view to compel the defendant to avail him
self of any objection he may have to the plaintiff's recovery, [P. & p.]
arising upon the face of the complaint, it is proposed by section 127, p. 149, to treat his omission to demur or answer as a waiver of the objection, except where it is to the jurisdiction of the court over the subject of the action.
$ 35. When the commencement of an action shall be stayed by injunction, the time of the continuance of the injunction shall not be part of the time limited for the commencement of the action.
Same as 2 R. S. 3d ed. 396, sec. 36.
$ 86. No person shall avail himself of a disability, unless it existed when his right of action accrued.
Same as 2 R. S. 3d ed. 397, sec. 41.
§ 87. When two or more disabilities shall exist, the limitation shall not attach until they all be removed.
Same as 2 R. S. 3d ed. 397, sec. 42.
§ 88. This title shall not affect actions to enforce the payment of bills, notes or other evidences of debt issued by monied corporations, or issued or put in circulation as money
This section is founded on 2 R. S. 3d ed. 395, sec. 25; by which it is provided that none of the provisions of the article, “ of the time of commencing actions for the recovery of any debt or demand, or for damages only," "shall apply to suits brought to enforce payment on bills, notes or other evidences of debt issued by monied corporations.” It differs in this, that the prohibition is made to extend, in terms, to “bills or notes issued or put in circulation as money," and in this respect, it uses the language by which securities of that nature are described in article 8, section 6, of the constitution.