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have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited.
$ 87. Descent cast.
The right of a person to the possession of any real property, shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.
§ 88. Persons under disabilities.
If a person entitled to commence any action for the recovery of real property, or to make an entry or defence founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or accrue 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; or,
4. A married woman,
The time, during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defence; but such action may be commenced or entry or defence made after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability ; but such action shall not be commenced, orentry or defence made, after that period.
Time of commencing actions other than for the recovery of real
Section 89. Limitation prescribed.
90. Twenty years.
98. Action by the people. $ 89. [69.] (Amended 1849). Periods of limitation prescribed.
The periods prescribed in section 74 for the commencement of actions other than for the recovery of real property, shall be as follows:
§ 90. [70.] (Amended 1849). Twenty years. Within twenty years :
1. An action upon a judgment or decree of any court of the United States, or of any State or territory within the United States.
2. An action upon a sealed instrument.
1. An action upon a contract, obligation, or liability, express or implied, excepting those mentioned in section 90.
2. An action upon a liability created by statute, other than a penalty or forfeiture.
3. An action for trespass upon real property.
4. An action for taking, detaining, or injuring, any goods or chattels, including actions for the specific recovery of personal property.
5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.
6. An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chan 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. 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 thereon 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.
b. The fifty-first section of the chapter of the Revised Statutes, relative to the limitation of actions, which provides that bills for relief on the ground of fraud shall be filed within six years after the discovery by the aggrieved party of the facts constituting such fraud, and not after that time, applies to bills for relief on the ground of fraud in all cases, and is not confined to cases where the jurisdiction of equity was exclusive. Mayne v. Griswold, 3 Sand., 463.
c. A person intrusted by the owner with a note against a third party for collection, who receives the money and neglects to pay it over, does not stand in the relation of trustee, so as to deprive him of the benefit of the statute of limitations. Hickok v. Hickok, 13 Barb., 632.
§ 92. [72.] (Amended 1849.) 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.
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.
1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process.
$ 95. [75.] (Amended 1849.) 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.
a. 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 Jimitations 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 not within six years from being barred by the statute. Hallock v. Losee, 1 Sand., 220 ; and see Ogden v. Astor, 4 ib., 312.
§ 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 attorney-general, or the district-attorney of the county where the offence was committed.
§ 97. [77.] Actions for other relief.
An action for relief, not herein before provided for, must be commenced within ten years after the cause of action shall have accrued.
See Elwood v. Diefendorf, 5 Barb., 398.
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.
General Provisions as to the time of commencing Actions.
Section 99. When action deemed commenced.
100. Exception, defendant out of State.
§ 99. [79.] (Amended 1849, 1851.) 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.
4. 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 :
" ]. 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 one or more of them.”
b. 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, incon. sistent with each other." See section 127 of this Code.
c. In Vredenburg v. Biggs, 3 Pr. R., 316, it was held under the code of 1848, that commencing an action and obtaining a judgment against one joint debtor, did not take the case out of the statute as to the other debtor. Under the present wording of the section, it may be that it would be held otherwise.
d. For the purpose of issuing a warrant under the non-imprisonment act, the action is sufficiently commenced by lodging the summons with the sheriff, with the intent that it should served. Gregory v. Weiner, 1 Code Rep. N. S., 210. Under the code of 1848, it was otherwise. Lee v. Averill, 1 Code Rep., 73; 1 Sand.,
$ 100. [80.] (Amended 1849, 1851.) Ecception, defendant out of State.
If, when the cause of action shall accrue against any per