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out of State.

as to per

ities.

1849, 1851.

A suit is not deemed commenced, so as to institute a proceeding under the act to abolish imprisonment for debt, before the summons is served on the defendant, there being neither personal service or publication. Lee vs. Averell, 1 Sand. 731; McEwens, ex'r, vs. Public Administrator, 3 Code

Rep. 139. Exeeption § 100. [Sec. 80.] If, when the cause of action shall accrue fendar the against any person, he shall be out of the state, such action may

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be commenced within the times herein respectively limited after Amended 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. Exception § 101. [Sec. 81.] If a person entitled to appeal or bring an persons un action mentioned in the last chapter, except for a penalty or

forfeiture, or against a sheriff or other officer for an escape, Amedded, 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, can not be extended more than give years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases.

§ 102. [Sec. 82.] If a person entitled to bring an action die before the expiration of the time limited for the com

mencement thereof, and the cause of action survive an action pires.

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 survives, an action may

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Amended 1949.

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1849.

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. [Sec. 83.] When a person shall be an alien subject in actione 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. [Sec. 84.) If an action shall be commenced within Provisions the time prescribed therefor, and a judgment therein for the judgement 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. [Sec. 85.] When the commencement of an action Time of shall be stayed by injunction, or statutory prohibition, the tatutory or time of the continuance of the injunction or prohibition to be deshall not be part of the time limited for the commencement Amended of the action

Disability § 106. [Sec. 86.) No person shall avail himself of a dis-must

exist ability unless it existed when his right of action accrued. accrued.

§ 107. [Sec. 87.] When two or more disabilities shall Where co-exist, at the time the right of action accrues, the limi- must be retation shall not attach until they all be removed.

§ 108. [Sec. 88.] This title shall not affect actions to This title enforce the payment of bills, notes or other evidences of cable to debt issued by monied corporations, or issued or put in of corporacirculation as money. $ 109. [Sec. 89.] This title shall not affect actions against actions

against di. directors or stockholders of a monied corporation, or bank-rectors, &c. ing associations, to recover a penalty or forfeiture imposed, corporaor to enforce a liability created by law; but such actions sociations: must be brought within six years after the discovery, by Limitation the aggrieved party, of the facts upon which the penalty ser prese or forfeiture attached, or the liability was created.

§ 110. [Sec. 90.] No acknowledgment or promise shall Acknowbe sufficient evidence of a new or continuing contract, or new

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promise wherebyto 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.

See section 73, supra and notes.

Amended 1849.

TITLE III.

Of the parties to civil actions.
SECTION 111. Action to be in the name of the real party in interest.

112. Assignment of a thing in action not to prejudice a defence.
113. Executor or trustee may sue without the persons beneficially

interested. 114. When married woman is party, her husband to be joined,

except, &c. 115. Infant to appear by guardian. 116. Guardian, how appointed. 117. Who may be joined as plaintiffs. 118. Who may be joined as defendants. 119. Parties united in interest, when to be joined. When one or

more may sue or defend for the whole. 120. Plaintiff may sue in one action the different parties to com.

mercial paper. 121. Action when not to abate by death, marriage, or other disa.

bility, &c. Proceedings in such case. 122. Court when to decide controversy, or to order other parties

to be brought in.

Action to be in the name of real party

$ 111. (Sec. 91.] Every action must be prosecuted in the

name of the real party in interest, except as otherwise provided ta interest. in section one hundred and thirteen, but this section shall not Amended be deemed to authorise the assignment of a thing in action not 1849, 1851,

arising out of contract.

The payee of a promissory note endorsed the same, and placed it in the bank for collection, and the bank transferred the same to another bank, for the same purpose; held, that the latter had not such a title to the note as to be able to bring an action and collect the same. Van Namee and others agt. The President &c. of the Bank of Troy, 5 How. 161.

But where a draft was owned by the bank, payable to the order of W. B. S., their cashier "for the said bank." and the complaint alleged the fact; held, on demurrer, the action was well brought. The Camden Bank vs. Rodgers & Britton, 4 How. 63; S. C., 2 Code Rep. 45.

Not real party to the action how plead. Bentley vs. Jones and Allen, 4 How. 202; Russell vs. Clapp, 3 Code Rep. 64.

The objection that plaintiff is not the real party, may be taken by demurrer in certain cases. Wallace et al. agt. Eaton et al., 5 How. 99.

Where the defendant succeeds against the nominal plaintiff on the record,

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the real party is liable for defendant's costs. Giles agt. Halbert, 5 How. 319.

As to the assignment of the right of action for tort, see Kellogg vs. Church, 3 Code Rep. 53.

§ 112. [Sec. 92.] In the case of an assignment of a thing Assign, in action, the action by the assignee shall be without preju-thing in acdice to any set-off or other defence existing at the time of Prefiudice a or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

§ 113. [Sec. 93.] An executor or administrator, a trustee of Executor, an express trust, or a person expressly authorized by statute trustee, may sue, without joining with him the person for whose benefit persons

beneficially the action is prosecuted. A trustee of an express trust, within interested. the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the Amended benefit of another.

This section (first clause) is an enactment of the rule respecting parties, which has always prevailed in courts of equity , and it should be applied, as far as practicable, according to the principles adopted in those courts. Grinnel et al. vs. Schmidt and Balchen, 2 Sand. 706.

§ 114. [Sec. 94.] When a married woman is a party, her When a husband must be joined with her, except that,

1. When the action concerns her separate property, she may to be joinsue alone:

2. When the action is between herself and her husband she may sue or be sued alone :

But where her husband cannot be joined with her, as herein provided, she shall prosecute or defend by her next friend.

Wife may sue for a limited divorce without next friend. Shore vs. Shore, 2 Sand, 715; Tippel agt. Tippel, 4 How. 346; Contra, Coit vs. Coit, 4 How. 232; S. C., 2 Code Rep. 94.

Where the wife is defendant in an action for divorce she is entitled to an allowance for her support pending the litigation, and to a further sum to defend the action. Hallock agt. Hallock, 4 How. 160.

A next friend is not necessary when the infant wife is not sole plaintiff. Hulbert and wife agt. Newell, 4 How. 93.

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Amended 1851.

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$ 115. [Sec. 95.] When an infant is a party, he must apappear by

pear by guardian, who may be appointed by the court in Amended which the action is prosecuted, or by a judge thereof,

or a county judge.

The guardian for infant plaintiff must be appointed before summons is issued. Hill agt. Thatcher, 3 How. 407.

For forms of petition for appointment of guardians. 2 Barb. Chanc. Prac. 387-8-9.

Judgment taken against infant defendant on default, will be set aside on motion, without imposing terms. Kellog vs. Klock, 2 Code Rep. 28.

§ 116. [Sec. 96.] The guardian shall be appointed as folpointed. lows:

1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary

, guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one, if he has none, then to the person with whom such infant resides:

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one, if he has none then to the infant himself if over fourteen years of age, or if under that age, to the person with whom such infant resides.

Order of appointment of guardian. 2 Barb. Chanc. Prac. 390. See Su. preme Court, Rules 55, 56, 57, 58.

§ 117. [Sec. 97.] All persons having an interest in the be joined as plaintiffs. subject of the action, and in obtaining the relief demand

ed, may be joined as plaintiffs, except as otherwise pro

vided in this title. be joined as $ 118. [Sec. 98.) Any person may be made a defendant, Amended who has or claims an interest in the controversy, adverse

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1849.

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