of property; or a bond for the forthcoming of property, or to obey or perform an order or judgment of a court in an action; or a bond for costs, or any other bond taken by a court or judge, or by an officer pursuant to the direction of a court or judge, in an action; or upon a replevin, sale, or delivery bond taken under an execution, or warrant of distress. An action upon an indemnifying bond taken under a statute, or upon a bond to suspend a proceeding or sale under an execution or distress warrant. § 27. Within five years; An action against a surety in any recognizance, bond, or contract, except where a shorter period is hereinafter prescribed. An action upon a contract, express or implied, other than one for which a different limitation is herein prescribed. An action upon a liability created by statute, other than a penalty or forfeiture. An action for trespass upon real property. An action for the profits of, or damages for withholding real property. An action for taking, detaining, or injuring personal property, including actions for the specific recovery thereof. An action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated. An action upon a bill of exchange, check, draft, or order, or upon a promissory note placed upon the footing of a bill of exchange. An action to enforce the liability of a steamboat, or other vessel, in a case in which it is specifically subject, by statute, to the plaintiff's claim. An action upon an account concerning the trade of merchandise between merchant and merchants, or their agents. An action for relief on the ground of fraud. § 28. Within three years: An action against a surety in the official bond of a clerk of a court, sheriff, coroner, jailer, constable, sergeant, or marshal, or against a surety in the bond of a sheriff or collector for the collection of the revenue or the county levy, or of a town or city tax. An action to recover a penalty or forfeiture imposed by the laws against gaming, or by the laws prohibiting the importation of slaves. 29. Within one year : Within one An action for an injury to the person of the plaintiff, or year for slander, of his wife, child, ward, or servant other than a slave. An action for a malicious prosecution or arrest. seduction, mer. chants accounts breach of pro. mise of marri. An action for seduction, criminal conversation, or breach age, &c. of promise of marriage. An action upon a statute for a penalty or forfeiture, oth 1851. In equitable pro. er than those for which a different limitation is prescribed in this chapter. An action for libel or slander. An action for the escape of a prisoner arrested or imprisoned on civil process. An action to enforce the liability of bail, or of a sheriff or other officer as bail. An action upon an account for goods, wares, and merchandise sold and delivered, or for any article charged in a store account. In every such action, the limitation shall be computed from the first day of January next succeeding the respective dates, or times of the delivery, of the several articles charged in the account, and judgment shall be rendered for no more than the amount of such articles as were actually charged, or delivered, within the year preceding that in which the action is brought. The dates of the delivery of the several articles charged in any such account, and of the receipts taken for them, shall he truly stated in the account. And if any merchant or trader shall wilfully postdate any article charged in such account, or the receipt for the delivery thereof, he shall forfeit tenfold the amount of such article, to be recovered by any person, with costs, before a justice, where the penalty does not exceed fifty dollars, and where it does exceed that sum, in the circuit court. § 30. In an action by equitable proceedings for relief on ceedings cause the ground of fraud, the cause of action shall not be deemcrued when ed to have accrued until the discovery of the fraud. of action ac fraud discover. ed. Between merchants, cause of from last item. § 31. In an action brought to recover a balance due upon a mutual, open, and current account concerning the trade of action accrued merchandise, between merchant and merchant, or their agents, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account claimed, or proved to be chargeable on the adverse side. Right of action on bond of guardian, &c. ward, &c. at accrues when tains 21 years. For relief can § 32. The right of action upon the official bond of a guardian, executor, or administrator, or of a sheriff, or other officer acting as such, in favor of a ward, or of a devisee or distributee, who was an infant when the bond was given, shall not be deemed to have accrued before the plaintiff attained the age of twenty-one years. Where there are several wards secured by the same bond, or several devisees or distributees who, or some of whom, were infants when the bond was given, the right of action of each one of such infants shall not be deemed to have accrued before he attained the age of twenty-one years. § 33. An action for relief, not herein before provided for, only be brought can only be commenced within ten years after the cause of within 10 years. action has accrued. Limitation to apply to cases § 34. The limitations prescribed in this chapter, shall by the common apply to actions brought by or in the name of the commonwealth, in the same manner as to actions by private persons. wealth. CHAPTER 4. General provisions. 1851. When an ac tion is deemed to have been § 35. Where an action is commenced in a county in which it is required or specially permitted, by this code, to be brought, or where any other action is brought in the commenced. county of the residence of the defendant, or of one of several proper defendants, every such action shall be deemed to have been commenced at the date of the first summons issued therein where it is served, or where, if it is not served, such summons and successive summonses in the action, regularly issued from term to term, are delivered to the proper officer, and where the last of them is served, or a warning order is regularly made in the action without the intermission of a term. Action deemed to have been date of summons. § 36. In every other case, the action shall be deemed to have been commenced at the date of the summons actual- commenced ly served upon the defendant, or one of several proper defendants, or at the date of the warning order regularly obtained therein. § 37. If a person entitled to bring any action mentioned in the third chapter of this title-except for a penalty or forfeiture, or for an escape of a defendant arrested or imprisoned on civil process, or against bail, or an officer liable as bail-was, at the time the cause of action accrued, an infant, married woman, or of unsound mind, the action may be brought within the like number of years after the removal of such disability, or the death of the personwhichever happened first-that is allowed to a person having no such impediment, to bring the same after the right accrued; except that it shall, in no case, be brought after fifteen years from the time the right accrued. This section shall not apply to the slaves of infants. §38. If a person dies before the time at which the right. to bring any action mentioned in the third chapter of this title would have accrued to him if he had continued alive, and there is an interval of more than three years between his death and the qualification of his personal representative, such representative shall, for the purposes of this ti tle, be deemed to have qualified on the last day of such period of three years. §39. If a person entitled to bring any action mentioned in the third chapter of this title, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, the action thereon may be brought by his representative, after the expiration of that time, and within one year from his death. § 40. If a person, against whom any action mentioned in the third chapter of this title may be brought, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative, after the at Time allowed infants, &c., to sue--not to ex ceed 15 years. Slaves of in fants not braced. em. If person dies before right of action accrues, three years allowed adminis trator to aue. If a person die before the. bar is complete, one year allow. ed to sue. If defendant die before bar is complete, one year allowed to tor, and 2 years to sue heirs. sue administra. 1851. No action to be brought against administrator after 5 years af ter qualification. No action to be brought against heirs and devisees after seven years. If defendant the state, time is absent from computed from his return. If defendant absconds or contime to be de ceals himself, ducted. expiration of that time, and within one year after the qualification of such representative; and if there is no personal representative, the action may be brought against his heirs or devisces, or both, after the expiration of the time. limited for bringing the same, and within two years after his death. § 41. No action against a personal representative, who has settled his accounts, and distributed the estate of his testator or intestate, on any judgment or decree against such testator or intestate, or on any contract made by him, shall be brought, after the expiration of five years from the qualification of such personal representative. § 42. No action upon a cause which accrued against a deceased person in his lifetime, shall, where his estate has been divided and distributed, be brought against his heirs or devisees, separately, or jointly with his personal representative, after the expiration of seven years from his death. 43. If, at the time any cause of action mentioned in the third chapter of this title accrues against a resident of this state, he is absent therefrom, the period limited for the commencement of the action thereupon against him, shall be computed from the time of his return to this state. § 44. Where a cause of action mentioned in the third chapter of this title, accrues against a resident of this state, and he, by departing therefrom, or by absconding or concealing himself, or by any other indirect means obstructs the prosecution of the action, the time of the continuance of such obstruction, shall not be computed as any part of the period within which the action may be commenced. But this section shall not avail against any other person than him so obstructing, notwithstanding another might have been jointly sued with him if there had been no obstruction. § 45. If an action is commenced within due time, and a judgment therein for the plaintiff is reversed, the plaintiff, reversed 1 year or, if he dies and the cause of action survives, his representative, may commence a new action, within one year after the reversal. If judgment is allowed to bring new action. If plaintiff is a subject of a Country at war with U. S. con. tinuance of war to be deducted. Time of plain tiff's confine ment in peniten. tiary deducted. Time action is stayed by in junction deduct ed. Disability will not avail unless it existed when right accrued. § 46. Where a plaintiff is an alien, and a subject or citizen of a country at war with the United States, the time of the continuance of the war, is not part of the period limited for the commencement of the action. § 47. The time of the confinement of a plaintiff in the penitentiary is not a part of the period limited for the commencement of the action. § 48. Where the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not part of the period limited for the commencement thereof. § 49. No person can avail himself of a disability, in any action mentioned in the third chapter of this title, unless it existed when his right of action accrued. $50. When two or more disabilities co-exist in the same person at the time the right of action accrues, the limitation does not attach, until they are all removed. 51. After a mortgagee of real property, or any one claiming under him, has had fifteen years' continued possession thereof, no action shall be brought by the mortgagor, or any one claiming under him, to redeem it, unless, in the meantime, the mortgagee, or person claiming under him, in possession of the property, has made a written acknowledgment of the right to redeem: in which case, the action to redeem may be brought within fifteen years from the time of such acknowledgment. Same of per. soual property, § 52. The provisions of the last section shall apply, in the case of a mortgage of personal property, with the dif- except 5 years. ference that the period within which the action to redeem may be brought, shall be five years. Written acknowledg ment necesзsary to statute. Acknowledg § 53. No acknowledgment or promise shall be sufficient evidence of any new or continuing contract, by which to take any case out of the limitations prescribed in this title, take case out of unless the same is in writing, and signed by the party to be charged thereby, or his agent. But no acknowledgment or promise by a personal representative of a decedent, or by one of several joint contractors, shall charge the estate of such decedent, or any other of such joint contractors, in any case in which, but for the promise cr acknowledgment, the limitation would apply. § 54. Where, by the laws of any other state or country, an action upon a judgment or decree rendered in such state or country, cannot be maintained there by reason of the lapse of time, and such judgment or decree is incapable of being otherwise enforced there, an action upon the same cannot be maintained in this state, except in favor of a resident thereof who has had the cause of action from the time it accrued. And no action shall be brought, upon a judgment or decree rendered out of this state more than ten years before the commencement of such action, against a person who has resided in this state ten years next preceding it. § 55. When a cause of action has arisen in another state or country, between residents of such state or country, and by the laws thereof an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state. § 56. The provisions of this title shall not apply in the following cases: 1. In the case of a continuing and subsisting trust. 2. To an action by a vendee of real property in possession thereof to obtain a conveyance of it. al representative or co-obli gor not suilicient. Cause barred main. in one state cannot be resident. tained against a Ten years resi. dence state bars right Cause between other state, if residents of anbarred there, is barred here. Provisions of title do not ap ply to trusts, or to action by vendee to obtain a conveyance. |