ficial duty. And an action must be commenced against him within three years, or the statute will become a bar. Peck v. Hurlburt, 46 Barb. 559. Also see Davy v. Field, 2 Keyes, 608. Where a sheriff wrongfully seizes and sells property, while acting in his official capacity, § 93. [73.] Within two years. Within two years: an action must be commenced against him within three years from the day the levy was made. Dennison v. Plumb, 18 Barb. 89; Coddington v. Carnley, 2 Hilt. 528. See Horner v. McCullough, 1 How. App. Cas. 126. 1. An action for libel, slander, assault, battery, or false imprisonment; 2. An action upon a statute, for a forfeiture or penalty to the people of this State. The provision of the act of Congress of 1841 (5 U. S. Stat. at Large, p. 446, § 8), limiting the assignee of a bankrupt to two years in which to bring an action for the recovery of real property held adversely to the bankrupt, etc., applies only where the adverse claims existed while the property was in the hands § 94. [74.] Within one year. Within one year: of the bankrupt and before the assignment; it does not apply to a cause of action arising in favor of such assignee after the assignment for an injury to property, or a disseizin of lands vested in him by the proceedings. Stevens v. Hauser, 39 N. Y. (12 Tiff.), 302; | Rev'g S. C. 1 Rob. 50; 1 Abb. N. S. 391. 1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process. § 95. [75.] (Am'd 1849.) When cause of action accrued in an action upon a current account. 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. What constitutes a mutual account.-The items of debit for the contract price of work, and for extra work alleged to have been done, and of credits for payments made, do not make a case of "reciprocal demands" within the meaning of § 95 of the Code. Peck v. The New York and Liverpool United States Mail Steamship Co. 5 Bosw. 226. Where a mutual, open and current account exists between parties, and one of them purchases from a third person who holds an open account against the other, without notice to, or any recognition of its validity by the latter, it does not become a part of the mutual account between them within the provisions of the statute of limitation, as to actions upon such accounts. Green v. Ames, 14 N. Y. (4 Kern.), 225. To constitute a mutual account, there must be items of account on both sides. Hallock v. Losee, 1 Sandf. 220. Where a bill was paid excepting one item, the accuracy of which was denied, held not to prevent the statute from running. Peck v. The New York & Liverpool United States Mail Steamship Co. 5 Bosw. 226. § 96. [76.] Actions for penalties, etc., by any person who will sue; when to be brought. An action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same, must be commenced within one year after the commission of the offense; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter in behalf of the people of this State, by the attorney-general, or the district-attorney of the county where the offense was committed. § 97. [77.] Actions for relief not before provided for. An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. General rule.-The provisions in the Code for the limitations of actions, do not entirely extinguish for all purposes, a debt arising on an express obligation merely because no action has been brought upon it within six years after it occurred. Jones v. Merchant's Bank of Albany, 4 Rob. 221; S. C. again, 6 id. 162. The statute of limitation begins to run at the time the plaintiff might bring his action, and is chargeable with notice that his right is denied; a new cause of action cannot be created by a subsequent demand of specific performance. Bruce v. Tilson, 25 N. Y. (11 Smith), 194; Roberts v. Sykes, 8 Abb. 345; S. C. 30 Barb. 173. § 98. [78.] (Am'd 1849.) Actions by the people, subject to the same limitation. The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State, or for their benefit, in the same manner as to actions by private parties. CHAPTER IV. General provisions as to the time of commencing actions. SECTION 99. When action deemed to have been commenced. 100. Exception, when defendant is out of the State. 101. Exception, as to persons under disabilities. 102. Provision, where person entitled dies before the limitation expires. 103. In suits by aliens, time of war to be deducted. 104. Provision where judgment has been reversed. 105. Time of stay of action by injunction or statutory prohibition to be deducted. 106. Disability must exist when right of action accrued. 107. Where two or more disabilities, limitation does not attach till all removed. 108. This title not applicable to bills, etc., of corporations or to bank notes. 109. Nor to actions against directors or stockholders of moneyed corporations or banking associations; limitations in such cases prescribed. 110. Acknowledgment or new promise must be in writing. § 99. [79.] (Am'd 1849, 1851, 1867.) When action deemed to have been commenced. An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. An attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; or, if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. a. Statute of limitations.-The delivery of a summons and complaint to the sheriff to be served with an honest intent to have them served, is a commencement of the action so as to save the case from the statute of limitations. Davis v. Duffie, 8 Bosw. 617; Rev'g S. C. 18 Abb. 360, but not on this point; S. C. Aff'd, 3 Keyes, 606; 3 Trans. App. 54; 4 Abb. N. S. 478. b. Proof of service.-Where the plaintiff files with the papers comprising the judgment roll (as he is required to do), the proof of the service of the summons and complaint, he is concluded by such proof as to the time when the action was commenced. Burroughs v. Reiger, 12 How. 171. The indorsement by a sheriff or other officer, of the time of the receipt of a summons in an action, is not of itself evidence of the fact so as to show the time of the commencement of the action within § 99 of the Code. Wardwell v. Patrick, 1 Bosw. 406. c. Arrest. The action is sufficiently commenced for the purpose of issuing a warrant under the non-imprisonment act, by lodging the summons with the sheriff, with an intent that it should be served; the actual service under § 139 is not necessary. Gregory v. Weiner, 1 Code R. N. S. 210. See § 139, post. d. Attachment.-The mere issuing of a summons is not the commencement of an action for general purposes; as for the purpose of obtaining an attachment against the property of a non-resident. Kerr v. Mount, 28 N. Y. (1 Tiff.), 659; Aff'g S. C. 2 Sandf. 660. But see Corson v. Ball, 47 Barb. 452. e. Tender of the amount of the demand of the plaintiff, after delivery of the summons to the sheriff, but before actual service, will have the effect of a tender before action commenced. Knight v. Beach, 7 Abb. N. S. 241. § 100. [80.] (Am'd 1849, 1851, 1867.) Exception, when the defendant is out of the State. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after 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, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. GENERAL RULES. a. Aggregate absence.-Under our statute of limitation, the only question upon its being set up as a defense, is whether the defendant has been within the State, and amenable to process of its courts, for six years before the commencement of the suit. In such case the statute is a complete defense, except where § 101 would change the rule. Bassett v. Bassett, 55 Barb. 505; Power v. Hathaway, 43 Barb. 214; also see McCord v. Woodhull, 27 How. 54. The aggregate of successive absences, and not the first absence only, is to be deducted from the time in which the statute runs. Cole v. Jessup, 10 How. 515; S. C. 10 N. Y. (6 Seld.), 96; Aff'g S. C. 9 Barb. 395; Harden v. Palmer, 2 E. D. Smith, 172; Berrien v. Wright, 26 Barb. 208. Where a defendant pleads the statute of limitations, and it is found that he has been absent from the State, by various journeys, at least one year in the aggregate, during the six years, that is not such an absence as will warrant a judgment against him. Temporary absence, without change of residence, will not prevent the running of the statute during such time Hickok v. Bliss 34 Barb. 321. b. Joint debtors.-The absence of one joint debtor from the State, suspends the running of the statute of limitations against him, although his co-debtor has remained within the State. Denny v. Smith, 18 N. Y. (4 Smith), 567, overruling Brown v. Delafield, I Denio, 445; Halden v. Crafts, 4 E. D. Smith, 490; S. C. 2 Abb. 301; sub nom. Walden v. Crafts. The rule is changed in the case of one of two joint and several debtors. Bogert v. Vermilya, 10 N. Y. (6 Seld.), 447; Aff'g S. C. 10 Barb. 32; 1 Code R. N. S. 212; see also Van Keuren v. Parmelee, 2 N. Y. (2 Comst.), 523; Vandenburgh v. Biggs, 3 How. 316. After a joint contract has been severed by the death of one of the contractors, the survivor cannot revive it by an acknowledgment, as against the personal representatives of the deceased, so as to prevent the statute of limitations from attaching. Lane v. Doty, 4 Barb. 530. A foreign corporation is a person out of the State, within § 100. Olcott v. Tioga R. R. Co. 20 N. Y. (6 Smith), 210; Rev'g S. Č. 26 Barb. 147. d. Non-residents.-That section of the statute of limitations which provides, that if at the time when the cause of action accrues against any person, he shall be out of the State, the action may be commenced within six years after his return into the State, is applicable as well to non-residents as to citizens going out of the State. Carpenter v. Wells, 21 Barb. 593. e. Partners.-Where one of several partners who, while out of the State, contracted a debt to creditors within the State, came here and procured a discharge under the bankrupt act of 1841, and afterwards and more than six years after the contracting of the debt, his co-partner came into the State and was sued upon their indebtedness, the court held that the statute of limitations was no bar to the action. Davis v. Kinney, 1 Abb. 440. § 101. [81.] Am'd 1849, 1851, 1852, 1870.) Exceptions as to persons under disabilities. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff 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; 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, cannot be extended more than five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases. a. Action by infant.-The statute of limitations does not commence to run against an infant cestui que trust, although her right to foreclose a mortgage accrues to her more than ten years before she becomes of age. Bucklin v. Bucklin, 1 Keyes, 141. b. Married woman.-A married woman may now sue alone for any injury to her person, and where such an action was brought in 1867, for an injury done in 1857, POTTER, J., said: "The disability being removed (by the laws of 1860), the statute applies; she did not bring her action within one year, nor within six years, after it was removed, hence it was barred." Ball v. Bullard, 52 Barb. 141. § 102. [82.] (Am'd 1849.) Provision where person entitled dies before the limitation expires. 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 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 survive, an action may 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. 2 R. S. 448, § 8, provides, that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators. This provision remains in full force and effect, notwithstanding § 102 of the Code. Scovil v. Scovil, 45 Barb. 517; S. C. 30 How. 246; see also Penny v. Brice, 18 J. Scott N. S. 393; Bucklin v. Ford, 5 Barb. 393; Parker v. Jackson, 16 id. 33; Murray | barred by the statute of limitations if it is v. East India Co. 5 B. & Ald. 204. The debt or claim of an executor, etc., against the estate of a decedent will not be presented and claimed at the first accounting, provided it was not barred at the death of the testator or intestate. Laws of 1868, ch. 594. § 103. [83.] In suits by aliens, time of war to be deducted. 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. A citizen of another State who is engaged in war with the United States, though not an alien enemy, is still an enemy, and his remedy in our courts is suspended until hostilities are ended, when his claim may be revived and recovered. Bonneau v. Dinsmore, 23 How. 397. §104. [84.] (Am'd 1863.) Provision where judgment has been reversed. If an action shall be commenced within the time prescribed therefor, and a judgment therein 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. See Lang v. Fatheree, 7 Sme. & M. 404. § 105. [85.] (Am'd 1849.) Time of stay of action by injunction, or statutory prohibition to be deducted. 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. The time during which an injunction is operative, must be deducted, when the statute of limitations is interposed as a defense. Sands v. Campbell, 31 N. Y. (4 Tiff.), 345; | McQueen v. Babcock, 41 Barb. 337; S. C. Aff'd 33 How. 617, n.; Berrien v. Wright, 26 Barb. 208. § 106. [86.] Disability must exist when right of action accrued. No person shall avail himself of a disability, unless it existed when his right of action accrued. § 107. [87.] (Am'd 1849.) Where two or more disabilities, limitation does not attach till all removed. When two or more disabilities shall co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed. See § 101, ante. § 108. [88.] This title not applicable to bills, etc., of corporations, or to bank notes. This title shall not affect actions to enforce the payment of bills, notes |