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barred at home

barred here.

ence that the period within which the action to redeem may be brought, shall be five years.

§ 18. When, by the laws of any other State or country, Foreignjudgment 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.

Exception.

barred in State

nated, & between

19. When a cause of action has arisen in another State Cause of action or country, between residents of such State or country, or where it origi- between them and residents of another State or country, and by the laws of the State or country where the cause of action accrued an action cannot be maintained thereon, by reason of the lapse of time, no action can be maintained thereon in this State.

citizens of other

States, is barred here.

Trusts not em

visions of this

§ 20. The provisions of this chapter shall not apply in the braced in the pro- case of a continuing and subsisting trust, nor to an action by a vendee of real property in the possession thereof, to obtain a conveyance. (a)

chapter, nor suits

by vendee in possession to obtain a title.

Injunction or oth

er restraint, when

operation of the

statute suspended by.

§ 21. In all cases where the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, absence, or refusal to act, shall not be estimated in the application of any statute of limitations.

§ 22. Where an action has been or shall be commenced Myers' Sup., 724. in due time, and in good faith, in any court of this Com

Dismissal of ac

the dismissal and

tion for want of monwealth, and the defendants, or either of them, have or jurisdiction, the interval between shall make defense, and it shall be adjudged that such court commencment of had or has no jurisdiction of the action, the plaintiff or his new action be representative may, within three months from the time of in three months. Such judgment, commence a new action in the proper court,

the new action

not computed if

commenced with

(a) Express continuing trusts, which are within the exclusive jurisdiction of courts of equity, are not affected by the statute of limitations. (L., L. & M. Ins. Co. vs. Page, 17 B. M., 451.) 2. Constructive trusts are not exempted from the operation of the statute of limitations. (Manion vs. Titsworth, 18 B. M., 601; Talbott vs. Todd, 5 Dana, 199.)

Titsworth,

3. If a trust is openly denied, the statute of limitations will apply. (Manion vs. 18 B. M., 601; Bohanon vs. Streshly, 2 B. M., 439; Findley vs. Patterson, 2 B. M., 78; Roberts vs. Roberts, 7 Bush, 100.)

4. That the property in contest is trust property does not prevent the statute of limitations from running against the trustee. But whenever there is a relation of trust between the parties, limitation will not run. (Maddox vs. Allen, ▾ Metcalfe, 498.)

and the time between the commencement of the first and last action shall not be counted in applying the limitation.

ARTICLE V.

When Limitation begins to run in respect to Streets, Alleys, &c., and Public Roads.

§ 1. The limitations mentioned in the first article of this chapter shall not begin to run in respect to actions by any town or city for the recovery of any street, alley, or other public easement, or any part of either, or the use thereof in such town or city, until the trustees, or the council or the corporation, by whatever name known or called, have been notified in writing by the party in possession, or about to take possession, to the effect that such possession will be adverse to the right or title of such town or city. Until such notice is given, all possession of streets, alleys, and public easements, or any part of either, in any town or city, shall be deemed amicable, and the person in possession the tenant at will of such town or city.

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roads.

§ 2. Limitation shall not begin to run in favor of any per- So as to public son in the possession of any public road, or of any part thereof, until written notice shall be given to the county court of the county in which the road is situated, that such possession is adverse to the right of the public to the use of such road.

ARTICLE VI.

Surety-Time disallowed-When Limitation begins to run in respect to stolen Property-What sufficient promise to revive a barred Cause of Action.

§ 1. A surety shall be discharged from all liability under any judgment or decree, after the lapse of seven years without any execution issued thereon, and prosecuted in good faith for the collection thereof.

§ 2. A surety in any bond, given in the course of any judicial proceeding, shall be discharged from all liability thereon, unless suit be brought thereon within seven years. after the accruing of the cause of action.

§ 3. A surety for an executor, administrator, guardian, or curator, or for a sheriff to whom a decedent's estate has been transferred, shall be discharged from all liability as such, to a distributee, devisee, or ward, when five years

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When and under shall have elapsed without suit, after the accruing of the

what circum.

stances.

nary obligation

cause of action, and after the attaining of full age by the devisee, distributee, or ward; but the failure to commence action in time by one shall not affect the right of another.

§ 4. A surety in any obligation or contract, other than Surety on ordi- those provided for in the next two preceding sections, shall discharged after be discharged from all liability thereon, when seven years suit be brought. shall have elapsed without suit thereon, after the cause of action accrued. (a)

7 years, unless

Savings and ex

ceptions to the

application of this

article.

§ 5. The limitations given in the next four preceding sections shall not apply to so much of the time elapsed when there was no executor, administrator, or other person authorized to commence an action, nor to the six months during which an action cannot be brought against a personal representative; nor to any delay assented to by the surety, in writing. And if judgment be rendered for the plaintiff, in any case provided for in those four sections, and the same be afterwards reversed or arrested, so that the plaintiff takes nothing thereby, he may commence another action within one year thereafter. And if such surety shall abscond, conceal himself, or by removal from the State, or otherwise, obstruct or hinder his being sued, the time of such obstruction shall not be computed as part of the time of limitation in said sections allowed. And if such judg ment be obstructed by appeal, supersedeas, or injunction, the time of such obstruction shall also be disallowed.(¿)

(a) That the payee of a note failed to sue on it for more than seven years after its maturity, in consequence of frequent requests of indulgence on the part of the surety, will not deprive him of the benefit of the statute of limitations in favor of sureties. (Coleman vs. Walker, 3 Metcalfe, 67.)

2. Seven years will bar a proceeding against one who has undertaken to pay the costs of a non-resident plaintiff. (McClure vs. McKee, 14 B. M., 265.)

3. One who resides out of the State, and becomes a surety here, will be entitled to the same benefit of limitation as sureties residing here. (Kellar vs. Stinton, 14 B. M., 308.)

4. One who signs a contract, as surety for a married woman, which she is not authorized to make, and is, therefore, void as to her, is a principal, and will not be released by the lapse of seven years without suit. (Short vs. Bryant, 10 B. M., 10; Gaines vs. Poor, 3 Metcalfe, 506.) 5. Payment by a surety of part of a debt, after he is released by limitation, will not revive the obligation to pay the balance. (Emmons vs. Overton, 18 B. M., 650.)

6. A promise to pay the debt after he is released by limitation will not be obligatory, nor prevent him from pleading and relying upon the statute. (Ibid.)

7. Proving and filing a note with the master commissioner in an action for the settlement of the estate of the principal in the note, without taking steps necessary to recover judgment on the note, cannot be regarded as a suit, and will not prevent the statute from running. (Harris vs. Moberly, 8 Bush, 556.)

(b) A surety, who removes from the State, either before or after the debt falls due, and returns occasionally for temporary purposes, not giving reasonable opportunity to the creditor to

§ 6. Actions for the recovery of stolen property may be commenced against any person having had the same in possession within one year from the time the property is found by the owner thereof, and not after; and actions for the recovery of damages, or the value of stolen property, must be commenced against the thief or any accessory, within one year from the time of the discovery of the liability.

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CHAPTER 72.

LOST RECORDS, &c., HOW SUPPLIED.

Record of judg mutilated, &c.,

ment, &c., lost, how to be sup

plied.

§ 1. When any judgment or final order of any court of record of this State remains unexecuted, and the record thereof has been lost, mutilated, defaced, or destroyed, it shall be lawful for any person interested therein, upon ten days' notice, in writing, to the adverse party, to move the court in which such judgment was rendered or final order was made to re-enter the same of record; and, upon satisfactory proof that such judgment or final order had been theretofore entered of record, that the same had been mutilated, defaced, or destroyed, and the purport thereof, it shall be the duty of the court to re-enter the same of record; Effect of: unless which judgment or final order so entered shall have the same effect as the original to all intents and purposes, and official copies thereof shall be received as evidence for all purposes for which like copies of the original, if in existence, would be competent. No judgment for costs shall be rendered against the defendant in such motion, unless he shall controvert the plaintiff's right, and fail in his defense.

contested, no cost

Bonds having the ment lost, how

force of a judg

supplied.

2. When any delivery, sale, forthcoming, replevin, or other bond, having the force and effect of a judgment, has been lost, destroyed, mutilated, or defaced, it shall be lawful for any person interested therein, upon ten days' written sue, will not be entitled to the benefit of the statute while thus absent. (Bennet vs. Devlin, 17 B. M., 359 to 362.)

2. A temporary absence will not prevent the statute from running; for, notwithstanding his absence, the payee might have brought his action; and although a personal service of the writ might not have been obtained, such proceedings could have been had as would have authorized a recovery. (Ormsby vs. Lether, 3 Bibb, 270-1.)

3. A promise made by a surety to a confiding creditor, that the debt should be paid at a named day, which the creditor relied upon, is such an obstruction and hindrance as is embraced by the statute. (Walker vs. Sayers, &c., 5 Bush, 579.)

thereon & effect

of.

notice to the adverse party, to move the court in which such The proceedings bond was on file to award execution thereon; and upon satisfactory proof that such bond had existed, that the same had been lost, destroyed, mutilated, or defaced, the purport thereof, and that the same remains undischarged, it shall be the duty of the court to award execution thereon, indorsed as though execution were issued on such bond, if in existence; but no judgment for costs shall be rendered against the defendant in such motion, unless he shall controvert the plaintiff's right to an execution and fail in his defense.

court appointing

§ 3. If an order of the county court, appointing an adOrder of county ministrator or guardian, or appointing any person to any fiduciary or bond place, station, or trust; or, if the bond executed in the supplied or new County court by any such person, or by an officer, shall be

of such fiduciary

lost, &c., how

bond required.

When

sioner to be appointed.

destroyed, obliterated, or lost, the court shall, by the appropriate proceeding, due notice thereof being given, supply the record, and require such person to execute a new bond, with good and sufficient sureties; and on his failure to do so, shall enter up an order vacating his office or station.

$4. If the records or papers of any court shall be lost, commis- destroyed, defaced, or obliterated, such court shall appoint a commissioner, who shall have power and authority to fix on a convenient place to meet and sit, from time to time, giving reasonable public notice thereof.

of commissioner.

5. The commissioner may, at the instance of any perPowers and duty son, issue a summons and cause the attendance of witnesses, and take evidence, in writing, of such witnesses, relative to any record or paper so destroyed, defaced, or obliterated; which deposition shall be legal evidence, and shall be returned to the clerk of the court, and safely kept by such clerk. Before any such proof is taken, the party offering it must make and file with the commissioner an affidavit that there is no attested copy of such record or papers in existence known to him. If such affidavit is not made, no testimony taken shall be evidence. The commissioner shall not remain in office longer than one year.

Acts 1863, 16.

6. The commissioner shall be paid a reasonable comCompensation. pensation for his service, out of the county levy.

Record books

§ 7. When any record book, containing judgments, delost or illegible, crees, orders, executions, or proceedings of a court, shall be lost, destroyed, or become illegible, and the same can be

effect thereof.

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