pay must be removed. This title not applica ble to bills, porations, notes. § 88. This title shall not affect actions to enforce the ment of bills, notes or other evidences of debt issued by monied corporations, or issued or put in circulation as money. §89. This title shall not affect actions against directors or &c. of cor. stockholders of a monied corporation, to recove a penalty or to bank or forfeiture imposed, or to enforce a liability created, by the Nor to acsecond title of the chapter of the Revised Statutes, entitled tions "Of incorporations;" but such actions must be brought rectors or within six years after the discovery, by the aggrieved party, ers of moof the facts upon which the penalty or forfeiture attached, or nied corpcthe liability was created. against di stockhold rations. Limitation in such Acknow § 90. Where the time for commencing an action arising cases preon contract shall have expired, the cause of action shall not scribed. be deemed revived by an acknowledgment or new promise, ledgment unless the same be in writing, subscribed by the party to be promise. charged thereby. TITLE III. OF THE PARTIES TO CIVIL ACTIONS. SECTION 91. Action to be in the name of the real party in interest. 94. When a married woman is a party, her husband to be joined, 95. Infant to appear by guardian. 96. Guardian, how appointed. 97. Who may be joined as plaintiffs. 98. Who may be joined as defendants. 99. Parties united in interest to stand on the same side, except, &c. cial paper. 101. Action not to abate by death, marriage, or other disability, &c. or new must be in writing. Action to name of §91. Every action must be prosecuted in the name of the be in the real party in interest, except as otherwise provided in sec- the real tion 93. ' party in interest. ment of a tion, not to § 92. In the case of an assignment of a thing in action, Assignthe action by the assignee shall be without prejudice to any thing in ac set-off or other defence existing at the time of, or before no- prejudice a tice of the assignment; but this section shall not apply to a defence. negotiable promissory note or bill of exchange. Executor, &c, or may sue 93. An executor or administrator, a trustee of an ex- trustee press trust, or a person expressly authorised by statute, may without sue without joining with him the persons for whose benefit persons be the suit is prosecuted. nificially interested. § 94. When a married woman is a party, her husband When mar must be joined with her except that, ried woman is a 1. When the action concerns her separate property, she band when may sue alone: 2. When the action is between herself and her husband, she may sue or be sued alone. to be join ed. Infant to § 95. When an infant is a party, he must appear by guarappear by dian, who may be appointed by the court in which the ac tion is prosecuted, or by a judge thereof. guardian. Guardian, how appointed. Who may be joined § 96. The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the petition of the infant, if he be of the age of fourteen years, or if under that age upon the petition of some other party to the suit, or of a relative or friend of the infant: 2. When the infant is defendant, upon the petition 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 petition of any other party to the action, or of a relative or friend of the infant. § 97. All persons having an interest in the subject of the as plaintiffs action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. Who may be joined ants. Parties uni § 98. Any person may be made a party defendant, who as defend has an interest in the controversy, adverse to the plaintiff. § 99. Of the parties to the action, those who are united ted in in- in interest must be joined as plaintiffs or defendants; but if when to be the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint. terest, joined. Different parties to same in § 100. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and strument, promissory notes, may, all or any of them, be included in be sued to the same action, at the option of the plaintiff. when may gether. Proceed❜gs marriage, § 101. No action shall abate by the death, marriage or upondeath, other disability of a party, or by the transfer of any interest or other therein, if the cause of action survive or continue. In case disability of death, marriage, or other disability of a party, the court, of interest, on motion, at any time within one year thereafter, may aldency of low the action to be continued by or against his representaaction. tive or successor in interest. In case of any other transfer during pen Court may parties to of interest, the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action. § 102. When a complete determination of the controversy order other cannot be had without the presence of other parties, the be brought court may order them to be brought in, by an amendment of in. the complaint, or by a supplemental complaint, and a new summons. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. SECTION 103. Certain actions to be tried where the subject arose or is sit 105. Actions may be tried in any county unless defendant objects. tions to be § 103. Actions for the following causes, must be tried in Certain acthe county where the cause or some part thereof arose, or in tri'd, where which the subject of the action or some part thereof is situa- cause arose ted, subject to the power of the court to change the place of is situated. trial, in the cases provided by statute. 1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property: 2. For the partition of real property: 3. For the foreclosure of a mortgage of real property: any cause: 5. For injuries to the person or personal property: 6. For the recovery of a penalty or forfeiture imposed by statute: except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed: 7. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do any thing touching the duties of such officer. or subject tions, where any sides. § 104. In all other cases, the action shall be tried in the other accounty in which the parties or any of them shall reside at the commencement of the action; or if none of the parties party reshall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. 105. If the county designated for that purpose in the Actions complaint, be not the proper county, the action may, not- may be triwithstanding, be tried therein, unless the defendant shall, county.unbefore the time for answering expire, demand in writing that dant dethe trial be had in the proper county. mand trial in proper county. Actions how commenced. Summons, 109. 110. Complaint to be served with summons, except where no personal claim is made, in which case notice to be given. Defendant on whom such notice is served, unreasonably defending, to pay costs. 111. Notice of pendency of actions affecting title to real property. 112. Summons by whom served. 113. Summons, how served and returned. 114. When defendant not found, publication made. 115. Several defendants, and part only served, how to proceed. 116. When service deemed made in such case. 117. Service how proved. § 106. Civil actions in the courts of record in this state, shall be commenced by the service of a summons. § 107. The summons shall be subscribed by the plaintiff, or requisites his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, în which there is a post office, within twenty days after the service of the summons, exclusive of the day of service. Notice to be inserted in summons. Complaint to be serv'd cept where claim is notice to be §108. The plaintiff shall also insert in the summons a notice, in substance as follows: 1. In an action arising on contract, for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answe. the complaint: 2. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court, at a specified time and place, (after the expiration of the time for answering,) for the relief demanded in the complaint. § 109. A copy of the complaint shall be served with the with sum- summons, except, that in the case of a defendant against mons, ex- whom no personal claim is made, in an action for the partino personal tion of real property, or for the foreclosure of a mortgage, made; in the plaintiff m y, instead of a copy of the complaint, delivwhich case er to such defendant, with the summons, a notice subscribed by the plaintiff, or his attorney, setting forth the general object of the action, a brief description of the property affected by it, and that no personal claim is made against such defendant; in which case no copy of the complaint need be served on such defendant, unless, within the time for answerDefendant ing, he shall, in writing, demand the same. given. unieasona so notified, 110. If a defendant, on whom such notice is served, bly defend- unreasonably defend the action, he shall pay costs to the ing, to pay costs. plaintiff. Notice of § 111. In an action affecting the title to real property, the Dende plaintiff, at any time after the commencement thereof, may pendency real pro file with the clerk of each county, in which the property is affecting situated, a notice of the pendency of the action, containing perty. the names of the parties, the object of the action, and a description of the property in that county affected thereby; and, if the action be for the foreclosure of a mortgage, the date of the mortgage, the parties thereto, and the time and place of recording the same. In such case only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby. by whom § 112. The summons may be served by the sheriff of the summons, county, where the defendant may be found, or by any other served. person, not a party to the action. The service shall be made, and the summons returned, with proof. of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons, may, at his option, by an endorsement on the summons, fix the time, for the service thereof, and the service shall then be made accordingly. § 113. The summons shall be served by delivering a copy Summons. thereof, as follows: how serv'd and return 1. If the suit be against a corporation, to the president, or ed. other head of the corporation, secretary, cashier, or managing agent thereof: 2. If against a minor, under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person having the care and control of such minor; or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in consequence of habitual drunkenness, and for whom a committee has been appointed, to the committee; and to the defendant personally: 4. In all other cases, to the defendant personally. fendant not be made. § 114. When the person on whom the service is to be When demade, cannot after, due diligence be found within the state, found, puband that fact shall appear by affidavit to the satisfaction oflication to the court, or a judge thereof; and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, and that such defendant is a resident of this state, or has property therein; such court or judge may grant an order, that the service be made by the publication of the summons in two newspapers, which the judge may designate, as most likely to give notice copy of to the person to be served, and for such length of time, not summons less than thirty days, as the judge shall deem reasonable. In mailed. case of publication, the judge shall also direct a copy of the when to be |