money collected upon an execution. But this section shall not apply to an action for an escape. Within one year: 1. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the state, except where the statute imposing it prescribes a different limitation. 2. An action for libel, slander, assault, battery, or false imprisonment. 3. An action upon a statute for a forfeiture or penalty to the people of this state. 4. An action against a sheriff, or other officer, for the escape of a prisoner, arrested or imprisoned on civil process. 5. An action on an open account, for goods, wares and merchandise, sold and delivered. 6. An action for any article charged in a store account.

ART. 18, Sec. 18. 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.

ART. 19, Sec. 19. An action for relief, not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued.

ART. 20, Sec. 20. The limitations prescribed in this chapter,(1) shall apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.

ART. 21, Sec. 21. An action shall be deemed to be commenced within the meaning of this act when the complaint has been filed in the proper court.

ART. 22, Sec. 22. If, when the cause of action shall accrue against a person, he is 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 the state, the time of his absence shall not be part of the time limited for the commencement of the action.

ART. 23, Sec. 23 If a person, entitled to bring an action other than for the

St6 recovery of real property, except for a penalty or forfeiture, or against a sheriff 26 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 a part of the time limited for the commencement of the action.

ART. 24, Sec. 24. 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 six months 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 survives, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration.

ART. 25, Sec. 25. 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 a part of the period limited for the commencement of the action.

ART. 26, Sec. 26. 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.

ART. 27, Sec. 27. 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.

(1) Articles 17, 18 and 19.

ART. 28, Sec. 28. No person shall avail himself of a disability, unless it existed when his right of action accrued.

ART. 29, Sec. 29. When two or more disabilities co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed.

ART. 30, Sec. 30. The preceding sections of this act shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created. ART. 31, Sec. 31. No acknowledgement or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing signed by the party to be charged thereby.

Act of May 4, 1852, defining the Time of Commencing Civil Actions in certain cases.

ART. 32, Sec. 1. An action upon any contract, obligation or liability for the payment of money, founded upon an instrument of writing executed out of this state, can only be commenced as follows: 1. Within one year, when more than two and less than five years have elapsed since the cause of action accrued. Within six months, when more than five years have elapsed since the cause of action accrued.

2.

ART. 33, Sec. 2. When the cause of action has arisen in another state or a territory of the United States, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state. (1)

Supplement of April 2, 1855.

ART. 34, Sec. 1. An action upon any judgment, contract, obligation or liability for the payment of money or damages obtained, executed or made out of this state, can only be commenced within two years from the time the cause of action has accrued or shall accrue.

For limitation of criminal actions, see Courts of Justice, Criminal Practice. Ejectment-Land, Art. 2755.

JUDICIAL DECISIONS.

1. Ir a defendant fail to plead the statute of limitations at the proper time, he will not be permitted to amend his answer so as to introduce the plea, unless it be in furtherance of justice. Cooke v. Spears, 2 Cal. 409. 2. The plea of the statute of limitations is not favored, unless in aid of justice; but the court should allow it to be pleaded at any time when justice will be attained thereby. Id. When the plea of the statute is claimed as a mere legal right it must be pleaded in the first instance, and has no day of grace thereafter. Id.

3. Accounts "certified and approved" are "instruments of writing," and are not barred by that portion of the statute applying to accounts. Sannickson v. Brown, 5 Cal. 57.

4. Where an appeal is taken from the judgment, the statute commences running from the date of the remittitur from the supreme court. Dewey v. Latson, April T. 1856.

5. An appeal prevents the running of the statute. Castro v. Castro, April T. 1856.

6. Limitation of mining claims. Davis v. Butler, Oct. T. 1856.

7. Acts of limitation affect the remedy and not the right, and have no retrospect beyond their passage. Billings v. Hall, Jan. T. 1857.

8. The amendment of 1855 repeals section 6th of the act of 1850, and the time only begins to run from the date of the last act. Billings v. Hall, Jan. T. 1857.

9. The amendment does not divest rights vested, for statutes of limitation affect the remedy and not the right, therein differing from prescription, which confers a right. Id.

10. Where a judgment by confession, in another state, was opened, and trial had, and judgment again rendered for plaintiff, the statute of limitations of this state, in a suit on the judgment, only commenced to run from the final entry of judgment. Parke v. Williams, Jan. T. 1857.

Judgment-Cavender v. Guild, 4 Cal. 250; Ray v. Patten, 4 Cal. 287. Contribution-Sherwood v. Dunbar, Jan.

T. 1856.

II.-ACTS, EFFECT, AUTHENTICATION AND REPEAL OF, ETC.

ARTICLE

35. Acts and joint resolutions, when to take effect.

36. Bills returned without signature of governor, how authenticated.

ARTICLE

37. Bills remaining ten days in governor's hands and

not returned, how authenticated.

38. Reviving repealed acts.

(1) Nelson v. Nelson, Oct. T. 1856.

X'CI PY

Act of Jan. 24, 1850, fixing the Time for Acts and Joint Resolutions to take effect.

ARTICLE 35, Sec. 1.XAll acts and joint resolutions shall take effect from and after their passage, unless some other time is expressly stated therein.

Act of May 1, 1852, for the Authentication of Statutes.

ART. 36, Sec. 1. When a bill, that has passed both houses of the legislature, shall be returned by the governor without his signature, and with objections thereto, and, upon a reconsideration, shall pass both houses by the constitutional majority, it shall be authenticated as having become a law, by a certificate indorsed thereon, or attached thereto, in the following form:

"This bill having been returned by the governor, with his objections thereto, and, after reconsideration, having passed both houses by the constitutional majority, it has become a law, this day of , A. D." which, being

signed by the president of the senate and speaker of the assembly, shall be deemed a sufficient authentication thereof, and the bill shall again be presented to the governor, to be by him deposited with the laws in the office of the secretary of state.

ART. 37, Sec. 2. Every bill which has passed both houses of the legislature, and shall not be returned by the governor within ten days, having thereby become a law, shall be authenticated by the governor, causing the fact to be certified thereon by the secretary of state, in the following form:

day

"This bill having remained with the governor ten days, (Sundays excepted,) and the senate and assembly being in session, it has become a law, this -" which certificate shall be signed by the secretary of with the laws in his office.

of, A. D.

state, and deposited

Act of March 14, 1853, concerning Repealed Statutes.

ART. 38, Sec. 1. No act or part of an act repealed by another act of the legislature shall be deemed to be revived by the repeal of the repealing act, without express words reviving such repealed act or part of an act.

JUDICIAL DECISIONS.

1. WHERE a statute is declared to take effect from and after its passage, it takes effect at the very moment of its approval by the governor. And for the purpose of determining the right to an office, it is competent to inquire at what particular point of time in the day an act was approved. People v. Clark, 1 Cal. 406.

2. The court may go behind the record evidence of a statute, and inquire whether it was passed or approved in accordance with the constitution. Fowler v. Pierce, 2 Cal. 165.

3. An act cannot be approved after the adjournment of the legislature. Id.

4. In construing statutes, force and meaning should be given to every part, and courts will not, except when the language is so vague and indefinite as to be wholly destitute of meaning, reject any portion. Cheever v. Hays, 3 Cal. 471.

5. Repeal by implication. Dominguez v. Dominguez, 4 Cal. 186.

6. A subsequent act, special in character, will control the general provisions of a prior act. People v. Phoenix, Jan. T. 1856.

7. Where there are two laws on the same subject they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the later act. Merrill v. Gorham, Jan. T. 1856. 8. If a statute or section of a statute is re-enacted, it is inconsistent with the idea that the old statute or section still remains in force. Billings v. Harvey & Tibbetts, Oct. T. 1856.

9. The law does not favor a repeal by implication, and unless the former act be referred to, or is clearly repugnant to the provisions of the latter, both must stand. Id; Scofield v. White, April T. 1857. See Constitutional Construction.

Act of April 15, 1851, concerning the Office of Public Administrator, and making it Elective.-[R. A. St. 1850, 403. ARTICLE 39, Sec. 1. There shall be elected at the general election in and for each of the counties of this state, by the electors thereof, a public administrator, who shall continue in office for the term of two years and until his successor is elected and qualified.-[Am. April 4, 1854, R. S. St. 1851, 206, C. L. 846.

ART. 40, Sec. 2. Before entering upon the duties of his office he shall execute a bond with sureties, to be approved by the probate judge, in a sum not less than thirty thousand dollars, and which may at any time be increased, in the discretion of the probate judge, conditioned for the faithful performance of all the duties enjoined upon him by law, and particularly that he will account for, and pay over all moneys and property that may come into his hands, as such public administrator; provided, that the probate judge may, in his discretion, for good reason shown, fix the amount of the bond to be given by the public administrator, at any sum not less than fifteen thousand dollars.-[Am. May 7, 1855, R. S. St. 1851, 206, C. L. 846.

ART. 41, Sec. 3. He shall perform such duties and receive such compensation as may be prescribed by law."

ART. 42, Sec. 4. No public administrator now in office, or hereafter elected under this act, shall be interested directly or indirectly in expenditures of any kind made on account of any estates of deceased persons; nor shall he be associated in business or otherwise with any person who shall be so interested, and he shall annex to his report every six months as required by this act, an affidavit taken before a county or district judge to that effect.

ART. 43, Sec. 5. The public administrator shall, once in every six months, make to the probate judge, under oath, a return of all estates of deceased persons, which have come into his hands, the value of the same, the expenses, if any, paid thereon, and the balance, if any, remaining in his hands; said return to be published six times in some newspaper in the county, or if there be no newspaper published in the county, then it shall be posted, legibly written, or printed, in the office of the county clerk of the county; and he shall, after a final settlement of the affairs of any estate, if there be no heir or heirs, or other claimant thereof, pay over to the county treasurer, to be by him paid into the state treasury, all moneys and effects in his hands, belonging to said estate; and in the event of all or any such moneys and effects having escheated to the state, the same shall be disposed of as other escheated estates.-[Am. May 7, 1855, R. S. St. 1851, 206, C. L. 846.

[Sections 6, 7, 8, executed. St. 1851, 207, C. L. 847. Sec. 9, repealed April 4, 1854. St. 1854, 27; St. 1851, 207.] Act of May 1, 1851, to regulate the Settlement of the Estates of Deceased Persons.-[R. A. St. 1850, 403.

ART. 44, Sec. 303. For any willful misdemeanor in office, the public administrator may be indicted, and fined in any sum not exceeding two thousand dollars,

and removal from office.

ART. 45, Sec. 304. Whenever any stranger or person without known heirs shall die intestate, in house or premises of any other person, it shall be the duty of such person, or any one knowing thereof, to give immediate notice to the public administrator; and in default thereof he shall be liable to any damage that may be sustained thereby, to be recovered by the public administrator, or any party interested.

ART. 46, Sec. 305. He shall make a perfect inventory of all such estate taken into his possession, and administer an account for the same as near as circumstances will permit, according to the law prescribing the duties of administration, subject to the control and direction of the probate court.

ART. 47, Sec. 306. If at any time letters testamentary or of administration be regularly granted on such estate to any other person, he shall, under the order or the probate court, account for, pay and deliver to the executor or administrator thus appointed all the money, property, papers and estate of every kind in his possession.

ART. 48, Sec. 307. It shall be the duty of all civil officers to inform the public administrator of all property and estate known to them, which is liable to loss, injury or waste, and which by law ought to be in the possession of the public administrator.

ART. 49, Sec. 308. The public administrator shall institute all manner of suits and prosecutions that may be necessary to recover the property, debts, papers or other estate of the person deceased.

ART. 50, Sec. 309. If the public administrator shall complain to the probate judge, on oath, that any person has concealed, embezzled or disposed of, or has in his possession any money, goods, property or effects, to the possession of which said administrator is entitled, in his official capacity, the judge may cite such person to appear before the probate court, and may examine him on oath, touching the matter of such complaint.

ART. 51. Sec. 310. If the person so cited refuse to appear and to submit to such an examination, or to answer to such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the county jail, there to remain in close custody until he shall submit to the order of the court; and all such interrogations and answers shall be in writing, and shall be signed by the party examined, and filed in the probate court.

ART. 52, Sec. 311. The probate court may, at any time, order the public administrator to account for and deliver all the money and property of any estate in his hands to the heirs, or to the executors or administrators regularly appointed. ART. 53, Sec. 312. The public administrator shall render a yearly account to the county auditor, of: 1. A list of the estates which have come under his charge, the condition in which they are at the time of reporting, the disposition which has been made of any during the year. 2. The sums of money which have come into his hands, in each estate, and what disposition has been made of them, and the amount of his fees; which said amount shall be published in at least two journals of the state, one of which shall be in his own county, if there is one published.

Act of April 28, 1851.-[R. S. St. 1850, 403.

ART. 54, Sec. 1. The fees of public administrator shall be four per cent. upon the amount of the estates administered by them, which per centage shall be the only compensation allowed for their services.

Act of April 5, 1856.

Sec. 1. The public administrator of the counties of Nevada, Sacramento, Monterey and Amador, shall hereafter be entitled to receive for his services the same fees as are allowed executors and administrators by an act entitled "An Act to regulate the Settlement of the Estates of Deceased Persons," passed May first, one thousand eight hundred and fifty-one.

See Estates, Office, Crimes and Punishments.

JUDICIAL DECISIONS.

1. The public administrator is personally liable upon a contract made in relation to estates upon which he administers, unless the idea of such personal liability be excluded by the contract. Dwinelle v. Henriquez, 1 Cal. 387.

2. It is not necessary to issue letters of administration to the public administrator. Beckett v. Selover, Oct. T. 1856. His certificate of election is his letters of administration. Id.

3. All the provisions of the law relative to the powers and duties of the public administrator, are special provisions, and must be given their full force. He has official powers and is an officer of the law. Id, Jan. T. 1857. 4. It seems to have been the intention of the statute to dispense, in his case, with the bond and oath required of other administrators in each particular case. Id.

5. He must obtain letters of administration in each particular case. Id.

6. He is entitled to administer upon all estates not otherwise administered. Id.

7. He should at once take possession of the estate of all persons dying without known heirs. Id.

8. His right to take possession of any estate is in virtue of his office, and he must deliver it up to the person showing himself entitled thereto. Id.

9. He cannot be compelled to prove the facts which entitle him to administration in each case where his authority is called in question. Id.

See Revenue.