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.

§ 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.

§ 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.

$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. When person liable, etc., dies without the State. [AMENDED BY CH. 416 OF 1877.] 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. Cause of action accruing between the death of a testator or intestate, and the grant of letters. [AMENDED BY CH. 416 OF 1877.] 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 essation 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.

§ 394. Action against directors, etc., of banks. [AMENDED BY CH. 416 OF 1877.] 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.

§ 395. Acknowledgment or new promise must be in writing. 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.

§ 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.

§ 397. Defence or counter-claim. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counter-claim.

TITLE III.

General provisions.

SECTION 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. When action deemed to be commenced. [AMENded by Ce. 416 OF 1877.] An action is commenced against a defendant, within the

Ch. 4, Tit. 3.

LIMITATIONS.

SS 399-403. meaning of any provision of this act, which limits the time for commencing on action, when the summons is served on him; or, on a co-defendant whe is a joint contractor, or otherwise united in interest with him.

§ 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 co-defendants, 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.

$ 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 recor3, where the summons is delivered to an officer authorized to serve the sam, within the city or town wherein the person resides, or the corporation 1; located, as specified in that section; provided that actual service thereof is made with due diligence.

§ 401. Exception when defendant is without the State. [AMENDED BY CH. 416 OF 1877.] 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 the person, he departs from and resides without 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 resilence 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. [AM'D CH. 498 OF 1888.]

§ 402. Id.; when a person entitled, etc., dies before limitation expires. If a person, entitled to maintain an action, dies before the expira tion 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.

$403. When a person liable, etc., 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 provision 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 the 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. [Aм'D CH. 70 OF 1891; in effect March 12,

§ 404. In suits by aliens time of disability in case of war to be deducted. Where a person is disabled to sue in the courts of the State, by reason of either party being an alien subject or citizen of a country at war with the United States, the time for the ontinuance of the disability is not a part of the time limited for the commencement of the action.

§ 405. Provision where judgment has been reversed. If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.

§ 406. Stay by injunction, etc., to be deducted. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action.

§ 407. Certain actions by a principal, for misconduct of an agent, etc. Where an injury results from the act or omission of a deputy or agent, the time, within which an action to recover damages by reason thereof, must be commenced by the principal, against the deputy or agent, must be computed from the time, when a judgment against the principal, for the act or omission, is first recovered by the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time.

$408. Disability must exist when right accrues. A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued.

§ 409. If several disabilities, no limitation until all removed. Where two or more disabilities co-exist, when the right of action or of entry accrues, the limitation does not attach, until all are removed.

§ 410. Provision when the action cannot be maintained without demand. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete; except in one of the following cases:

1. Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends.

2. Where there was a deposit of money, not to be repaid at a fixed time, out only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand.

§ 411. Provision in case of submission to arbitration. Where the persons, who might be adverse parties in an action, have entered into a written agreement to submit to arbitration, or to refer the cause of action, or a controversy in which it might be available, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person

against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. § 412. Provision when action is discontinued, etc., after answer. Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defence or counter-' claim then existing in his favor, the remedy upon which, at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action is not a part of the time limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person-deriving title from or under him.

§ 413. How objection taken, under this chapter. The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counter-claim can be taken only by reply; except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the

answer.

§ 414. Cases to which this chapter applies. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases:

1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.

2. A cause of action or a defence which accrued before the first day of July, eighteen hundred and forty-eight. The statutes then in force govern, with respect to such a cause of action or defence.

3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof.

4. A case, where the time to commence an action has expired, when this act takes effect.

The word, "action," contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action.

§ 415. Mode of computing periods of limitation. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.