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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.) Erceptions, 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, eaccept that the period within which the action must be brought, cannot be eatended more than five years by any such disability, eacept 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 of 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 easyires.—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, déc.—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 eacist 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.j This title not applicable to bills, déc., 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.] (Amended 1849.) Wor to actions against directors, déc., 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.] (Amended 1849.) Acknowledgment or new Apromise 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 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.

The 90th section of the code of 1848, for which this section is substituted, was as follows: “Where the time for commencing an action arising on contract shall have expired, the cause of action shall not be deemed revived by an acknowledgment or new promise, unless the same be in writing subscribed by the party to be charged thereby,” and under that provision, where a verbal promise was made after the code of 1848 took effect, to pay a debt which was barred by the statute of limitation before the code went into operation; it was held, that such promise did not revive the cause of action, and that the provisions of section 66 (now 73) had no application to this section. Wadsworth v. Thomas, 3 Code Rep.,227; 7 Barb., S. C. R., 445. Per Gridley, J. The statute had attached when the code of 1848 took effect. After, that and on August 30th, 1848, the defendant promised to pay the notes. But this promise was not in writing, and the defendant insists that within the principle of the 90th [110] section of the code a verbal promise does not revive the cause of action. Upon these facts, two questions are presented for our consideration. 1. Whether upon the true construction of section 90 [110], irrespective of the saving clause contained in section 66 [73], the cause of action was revived. It is contended for the plaintiff, that the new promise is not within section 90 [110], upon the ground that statutes are always to be construed to act prospectively and not retrospectively. There can be no doubt that this proposition, when rightly understood, is sound law. The meaning of it is, that a statute is not to be construed to operate retrospectively, so as to take away a vested right. The rule is so expounded in all the cases cited (7 John, 501; 12 Wend, 490; 8 Id., 661; 5 Hill, 408; 1 Denio, 128; 10 Wend., 104; Id, 363). To bring the case within this rule, the new promise should have been made before the code took effect. Then, upon the law as it existed when the code went into operation, the plaintiff would have had a vested right of action, to recover the amount of the notes, but there having been no recognition of the demand or promise to pay, within six years next before the time when the code became a law, there was no existing vested right. It had been taken away by the statute, and had not been restored by a new promise; and therefore the act was strictly prospective in its operation. It had respect to the manner in which a right of action might be revived. The plaintiff lost no existing right by the act, but was merely prevented from acquiring one thereafter, except in the matter pointed out in the act. It is true that the opinion delivered by Justice Sutherland, in WanRensselaer v. Livingston, (12 Wend. 490), upon a superficial reading, seems to carry out the doctrine a little farther than the rule above laid down. But the law itself warrants no such conclusion. That was precisely such a case as this would have been had the new promise been made before, instead of after the time when the code took effect. The decision in Warner v. Griswold (8 Wend. 661), is in principle the same. There is a great variety of cases which show that the rule of construction now in question cannot apply to a case like this. 10 Wend., 365; Id. 104; 17 Id. 329; 2 Hill, 238; 5 Id. 409; 1 Id. 324. See also 1 Kent's Com., 455, 6; Id. 408; 9 2d. ed. The next question to be considered is, whether section 66 [now 73] of the code excludes the provision contained in section 90 [now 110] from any application to the case under consideration. Section 90 (now 110] is certainly a part of the title mentioned in section 66 [now 73]; and yet it is very doubtful whether it is so within the spirit and true meaning of the enactment. The fact that it is within the words of the enactment literally interpreted, is not conclusive upon this point. “The real intention, when accurately ascertained, will always prevail over the literal sense of the terms. (1 Kent's Com. 462.) The title of the code spoken of treats “Of the time of commencing actions,” and is intended as a substitute for the old statute of limitations. When it was decided that the forms of actions should be abolished, it became necessary to restrict this statute; for the provisions of the old act limited actions by name, as debt, assumpsit, case, &c. And in construction of this part of the statute some other changes were made in the times limited for the commencement of certain actions. It was probably these limitations of time which the framers of the act intended should not apply to actions already commenced, or to cases wherein the right of action had already accrued. The provision is analogous to that contained in the 45th section of 2 R. S., 300. Such was the application of that section, as appears from the cases of Van Hook v. Whitlock, 3 Paige, 416, and Fairbanks v. Wood, 17 Wend., 329, explained in 2 Hill, 238, and 5 Id, 408. We, think, too, that the concluding words of the section in question point with great significance to the class of enactments which the section was intended to embrace. When it is said that “the statute now in sorce shall be applicable to such cases, according to the subject of the action, and without regard to the form,” what else is meant but that the statutes which now limit actions of assault and battery to four years, and actions of assumpsit to six, shall continue applicable to the subjects of those actions (notwithstanding the names and forms of actions are abolished), in all cases where the right of action had accrued? Again, the enactment applies to such matters only as are now regulated by statute, declaring that the new statute shall not apply, but that the old ones shall. Now, section 90 [110] is a provision entirely new. It is not a substitute for any former enactment existing when the code took effect. Ib. It is not necessary that an acknowledgment of a debt, in order to take the debt out of the statute of limitations should be made to the creditor himself or his agent. It is sufficient if made to a stranger. Bloodgood v. Bruen, 4 Sand. S. C. R, 427. Watkins v. Stevens, 4 Barb. S. C. R., 168. See Woodruff v. Moore, 8 Barb. S. C. R. 171, and Carshore v. Huyck, 6 ib. 583. A payment by one joint, or joint and several, debtor does not revive the liability of the other. Van Keuren v. Parmelee, 2 Coms., 523. Bogart v. Vermilya, 3 Code Rep. 142. 1 Code Rep., N. S., 212.

TITLE III.

Parties to Civil Actions.”

Section 111. Party in interest to sue.
112. Assignment of thing in action.
113. Executor or trustee, suits by.
114. Suits by and against married women.
115. Infants, suits by and against.
116. Guardian, how appointed.
117. Who may be plaintiffs.
118. Who may be defendants.
119. One or more may sue or defend for all
120. One action against the different parties to bills and notes.
121. Action when not to abate.
122. Court to decide controversy, &c., Interpleading.

§ 111. [91.] (Amended 1849–1851.) Action to be by party in interest.—Every action must be prosecuted in the name of the

* The present code (code of 1849), has adopted, with slight modifications, the rule in relation to parties which formerly obtained in courts of equity; and, with the exception in section 113, the suit must be prosecuted in all cases in the name of the party in interest; and the rule which prevailed in equity with the modifications above stated may be very safely applied to cases under the code, per Mason J., in Wallace v. Eaton, 5 Pr. R., 99, 100, and per Parker J., in Hollenbeck v. Van Walkenburgh, (5 Pr. R., 281-284, 1 Code Reports N. S., 33.), “The former chancery practice is now adopted as to making parties.” The commissioners in a note to their first report say: “We have intended to leave suitors very much at liberty to choose whom to make defendants and whom to join as plaintiffs. . . . . . This will save the plaintiff from the hazard now encountered of bringing in too many parties except that of paying costs.” Comm's. 1st report. It may be proper here to remark that choses in action, except negotiable bills and notes, were not assignable at law, but only in equity. Greenby v. Wilcor, 2 John, R., 1. And in case of an action at law, brought to recover such chose in action, it was necessarily in the name of the assignor, or if dead, his personal representatives, if any ; but if there was no executor or administrator of his estate, the assignee might by statute sue in his own name. (2 R. S. 274, s. 5, 2d ed.) Seeley v. Seeley, 2 Hill, 496. See Corbin v. Emerson, 10 Leigh, 663. Bell v. Shrock, 2 B. Munroe, 29. Combs v. Tarlton, ib. 194. Gatewood v. Rucker, 1 Munroe, 22, Sanders v. Murry, 4 Bibb, 458. Allen v. Crockett, ib. 240. Bromley v. Holland, 7 Sumner's Rep., 3 note (c.) Trecothick v. Austin, 4 Mason, 16–41. Hobart v. Andrews, 21 Peck, 526, 531, 532; Story, Eq. Pl., 153. The United States being the assignees was an exception—they might sue in their own name. United States v. White, 2 Hill 59. Now, however, it is presumed that the action in such a case must be in the name of the assignee; but whether or not the assignor should be made a party to the suit is a question that admits of considerable doubt. It is recommended, however, that in such cases the assignor should be made a party defendant and served with a notice of no personal claim under section 131 of this code, which, as amended, applies to all actions, and seems to contemplate that cases will occur, under the present practice as under the practice in the late court of chancery, where it may be advisable to make parties defendants who have a mere nominal interest in the subject matter of the suit. It seems impossible, when viewing the analogy, of the rules respecting parties contained in this title, to the rules on the same subject in the late court of chancery, to resist the inference that it was the intention of the framers of the code to, in effect, and subject to the express enactments in this title, to introduce the rules in equity practice respecting parties.

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