cery; 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. $92. [72.] 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.] 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 deemed 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 within six years, from being barred by the statute. Hallock v. Losee, 1 Sand. S. C. R. 220. § 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 attorneygeneral, or the district-attorney of the county where the offence was committed. $97. [77.] Actions for other relief.-An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. § 98. [78.] 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. CHAPTER IV. 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.)--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. This amendment is very extensive, the nature of it will be best seen by comparing the sections. 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 on 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. $100. [80.] (Amended.)-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 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, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. We insert section 100 of the code of 1849 entire, for the reasons mentioned in the note to section 99. "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 cannot be accumulated and the aggregate deducted from the time elapsed after the accruing of the action. The statute provides only for a single departure and return, after which it continues to run, notwithstanding any subsequent departure. Cole v. Jessup, 2 Barb. S. C. R. 309. The superior court of the city of New-York, dissenting from some of the conclu sions arrived at in Cole v. Jessup, supra, have confirmed it as to the point above cited and held in addition, that the statute applies to both residents and non-residents Ford v. Babcock, 2 Sandf. S. C. R. 518. § 101. [81.] (Amended.)—Exception, persons under disa bilities. If a person entitled to appeal or 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. The material amendment to this section is the insertion of the words printed in italic. 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 amendment is taken from the codifiers' report of 1850 [see 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 effects no rights already accrued." $102. [82.] 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. § 103. [83.] Actions by Aliens.-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. § 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. § 105. [85.] 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.] Where several disabilities, all must be removed. 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. See amendment to section 101. 108. [88.] This title not applicable to bills, &c., 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.] Nor to actions against directors, &c., 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.] Acknowledgment or new promise 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 |