2. Where a legatee brings an action, or institutes a proceeding, against an executor or administrator with the will annexed, to enforce the payment of a legacy.

L. 1891, ch. 70; L. 1896, ch. 897. In effect May 26, 1896.

§ 404. In suits by aliens, time of disability in case of war to be deducted.

Where a person is disabled to sue in the courts of the State, by reason of either party being an alien subject or citizen of a country, at war with the United States, the time of the continuance of the disability is not a part of the time limited for the commencement of the action.

Co. Proc., § 103, am'd.

§ 405. Provision where judgment has been reversed. If an action is commenced within the time limited therefor. and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.

Id., § 104.

§ 406. Stay by injunction, etc., to be deducted. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. Id., § 105, am'd.

§ 407. Certain actions by a principal, for misconduct of an agent, etc.

Where an injury results from the act or omission of a deputy or agent, the time, within which an action to recover damages by reason thereof, must be commenced by the principal, against the deputy or agent, must be computed from the time, when a judgment against the principal, for the act or omission, is first recovered by the aggrieved person: and a subsequent reversal or setting aside of the judgment does not extend the time.

$ 408. Disability must exist when right accrues. A person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued.

Co. Proc., § 106, am'd.

§ 409. If several disabilities, no limitation removed.

until all

Where two or more disabilities co-exist, when the right of action or of entry accrues, the limitation does not attach, until all are removed.

Id., 107, am'd.

410. Provision when the action cannot be maintained without a demand.

Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the

right to make the demand is complete; except in one of the following cases:

1. Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be compute from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends.

2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind. at a fixed time or upon a fixed contingency, the time must be computed from the demand.

§ 411. Provision in case of submission to arbitration. Where the persons, who might be adverse parties in an action, have entered into a written agreement to submit to arbitration, or to refer the cause of action, or a controversy in which it might be available, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action.

§ 412. Provision when action is discontinued, etc., after answer.

Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defence or counterclaim then existing in his favor, the remedy upon which at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him.

§ 413. How objection taken, under this chapter. The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counterclaim can be taken only by reply; except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer.

Co. Proc., part of § 74.

§ 414. Cases to which this chapter applies.

The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases:

1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.

2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern, with respect to such a cause of action or defence.

3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof.

4. A case, where the time to commence an action has expired, when this act takes effect.

The word, "action", contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action.

415. Mode of computing periods of limitation. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.

93

CHAPTER V.

Commencement of and Parties to an Action.

TITLE I.-Commencement of an Action.

TITLE II.-Parties to an Action.

TITLE I.

Commencement of an action.

Article 1. The summons and accompanying papers; personal service thereof; appearance of the defendant.

2. Substitutes for personal service in special cases.

ARTICLE FIRST.

The summons and accompanying papers; personal service thereof; appearance of the defendant.

Sec. 416. Action to be commenced by summons; time when court acquires jurisdiction.

417. Requisites of summons.

418. Form of summons.

419. Service of copy complaint or notice with summons; consequence of

failure.

420. Cases where such service must be made.

421. Appearance of defendant.

422. When defendant must answer before time to appear expires.

423. Notice of no personal claim; effect of service thereof.

424. Effect of voluntary appearance.

425. Summons; when and by whom served. Sheriff's duty.

426. How personal service of summons made upon a natural person.
427, 428. Id.; in certain cases of infancy, or lunacy, etc., not judicially
declared.

429. Id.; when delivery of copy te lunatic dispensed with.

430. Designation, by a resident, of a person upon whom to serve a summons during his absence: effect and revocation thereof.

431. How personal service of summons made upon a domestic corporation.
432. Id.: upon a foreign corporation.

433. Service of process, etc., to commence a special proceeding.
434. Proof of service of swamons, etc.; how made.

§ 416. Action to be commenced by summons; time when court acquires jurisdiction.

A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.

Co. Proc., part of § 127, and id., § 139.

§ 417. [Am'd, 1879.] Requisites of summons.

The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action, and, if it is brought in the supreme court, the game of the county in which the plaintiff desires the trial; and it must be subscribed by the plaintiff's attorney; who must add to his signature his office address, specifying a place within the

State where there is a post-office. If in a city, he must add the street, and the street number, if any, or other suitable designation of the particular locality.

Co. Proc., 128, remodelled. See ante, § 55.

§ 418. [Am'd, 1877.]

Form of summons.

The summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled:

"To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated

The summons is deemed the mandate of the court.

See Co. Proc., § 129.

$419. [Am'd, 1879.]

Service of copy complaint or notice

with summons; consequence of failure.

A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the Dext section.

Id. See post, § 1212.

§ 420. [Am'd, 1877.] Cases where such service must be made.

Judgment may be taken without application to the court, where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only. This section includes a case, where the breach of the contract, set forth in the complaint, is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit.

Id. See post, § 1212.

§ 421. Appearance of defendant.

The defendant's appearance must be made by serving upon the plaintiff's attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of a demurrer or of an answer. A notice or pleading, so served, must be subscribed by the defendant's attorney, who must add to his signature his office address, with the particulars prescribed in section 417 of this act, concerning the office address of the plaintiff's attorney.