shall be deemed to have accrued from the time of the last item proved in the account on either side. [C. L. § 3149. Cal. C. Civ. P. ? 344. Action upon open account, ? 2876. A statute of limitations commences to run from the date of each transaction in an open account, and not from the date of the last entry. In mutual accounts, the statute runs from the date of the last An 2883. Actions for relief not provided for. action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued. [C. L. § 3150. Cal. C. Civ. P. 2 343. This section embraces actions for negligence against common carrier. Thomas v. U. P. Ry. Co.; 1 U. 235. Also suits for accounting by cestui que trust against trustee of personalty, who has repudiated the trust, and statute begins to run from time such repudiation becomes known to plaintiff. Wood v. Fox, 8 U. 380; 32 P. 48; 166 Ú. S. 648. Thomas v. Glendinning, 13 U. 47; 44 P. 652. The general statute of limitations, which nowhere refers to actions for divorce, does not apply to such actions. Tufts v. Tufts, 8 U. 142; 30 P. 309. 2884. Limitations herein apply to state. The limitations prescribed in this chapter shall apply to actions brought in the name of or for the benefit of the state in the same manner as to actions by private parties. [C. L. § 3151. Cal. C. Civ. P. 345. Limitation, recovery of real property by the state, ? 2856. 2885. Action against mortgagee in possession. Seven years. An action to redeem a mortgage of real property with or without an account of rents and profits, may be brought by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for seven years after breach of some condition of the mortgage. [C. L. § 3152. Cal. C. Civ. P. ? 346*. Redemption of land sold under foreclosure, 23503. 2886. Id. When more than one mortgagor. If there is more than one such mortgagor, or more than one person claiming under a mortgagor, some of whom are not entitled to maintain such an action under the provisions of this chapter, any one of them who is entitled to maintain such an action, may redeem therein a divided or undivided part of the mortgaged premises, according as his interest may appear, and have an accounting for a part of the rents and profits, proportionate to his interest in the mortgaged premises, on payment of a part of the mortgage money, bearing the same proportion to the whole of such money as the value of his divided or undivided interest in the premises bears to the whole of such premises. [C. L. § 3153. Cal. C. Civ. P. 347. 2887. No limitation against recovery of deposits. To actions brought to recover money or other property deposited with any bank, banker, trust company, or savings or loan corporation, association, or society, there is no limitation. [C. L. § 3154*. Cal. C. Civ. P. 348*. CHAPTER 5. LIMITATIONS—MISCELLANEOUS. 2888. Absence suspends running of statute. If when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of the action accrues he depart from the state, the time of his absence is not part of the time limited for the commencement of the action. [C. L. § 3156. Cal. C. Civ. P. 351. Where contracts made between non-residents, statute does not begin to run until defendant comes into the territory. Burnes v. Crane, 1 U. 179. Words "depart" and "return" herein apply as well to non-residents coming into Utah as to residents going abroad and returning. Id. 2889. Legal disability prevents running of statute. Removal. If a person entitled to bring an action other than for the recovery of real property, be at the time the cause of action accrued, either: 1. 2. 3. Within the age of majority; or, Insane; or, Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than for life-the time of such disability is not a part of the time limited for the commencement of the action, but such action may be commenced within one year after such disability shall cease. [C. L. §§ 3157*, 4194*, 4359*-60*. Cal. C. Civ. P. ?? 352*, 1574*, 1805*, 1806*. Two years after disability removed, in actions real, 2872. Disaffirmance of contract by minor, 1542. Disability must exist when right accrues, ¿? 2895, 2896. 2890. Death before expiration of limitation. Effect. 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 representatives after the expiration of that time, and within one year after issuing of letters testamentary or of administration. [C. L. § 3158*. Cal. C. Civ. P. 2 353*. Presentment of claim against estate, rejection, limitation of action, 22 3856-3859. 2891. Death of debtor out of state, statute suspended. If a person against whom a cause of action exists dies without the state, the time which elapses between his death and the expiration of one year after the issuing, within this state, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. Mont. Civ. P. 2544. 2892. War suspends statute as to aliens. When a person is an alien 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. [C. L. § 3159. Cal. C. Civ. P. ? 354. 2893. New action after reversal or failure not upon the merits. If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action or upon a cause of action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure. [C. L. § 3160*. Kansas (1889) % 4100. 2894. Where action stayed by injunction, etc., statute suspended. When the commencement of an action is stayed by injunction, or a statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. [C. L. § 3161. Cal. C. Civ. P. 356. No 2895. Disability must exist when right of action accrues. person can avail himself of a disability, unless it existed when his right of action a crued. [C. L. § 3162. Cal. C. Civ. P. 2 357. 2896. Co-existing disability must be removed. When two or more disabilities co-exist at the time the right of action accrues, the limitation does not attach until all are removed. [C. L. § 3163. Cal. C. Civ. P. ? 358. 2897. Action against directors or stockholders. Three years after discovery. This chapter does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created. [C. L. § 3164. Cal. C. Civ. P. 359. 2898. Payment, acknowledgment, or promise extends time. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense. [C. L. § 3165*; '97, p. 265*. The mere stating of an account between the parties does not take the case out of the statute of limitations, unless such stated account be in writing and signed by the party sought to be charged. Anthony v. Savage, 2 U. 466. Where an account is barred by the statute of limitations, it is still a sufficient consideration for a new promise, and if such new promise be made, the action must be upon such promise, and not upon the original cause of action. Id. Acknowledgment in writing of an account already barred, and promise in writing to pay the same, becomes a new promise in writing. Gruenberg v. Buhring, 5 U. 414; 16 P. 486. A verbal agreement or new promise based on a prior agreement. barred by the statute of limitations, is within the provisions of section 3165, C. L. 1888. Whitehill v. Lowe, 10 U. 419; 37 P. 589. For example of sufficient acknowledgment hereunder, see Thomas v. Glendinning, 13 U. 47; 44 P. 652. Acknowledgment coupled with promise to pay upon contingency is sufficient. Kuhn v. Mount, 13 U. 108; 44 P. 1036. But in action thereon plaintiff must show that contingency has happened. Id. 2899. Action barred in another state, barred here. Exception. When a cause of action has arisen in an another state or territory, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued. [C. L. § 3166. Cal. G. Civ. P. 2 361. scribed by the local laws of the country where the Action must be brought within the period pre- suit is brought. Burnes v. Crane, 1 U. 173. 2900. Existing right not affected hereby. This chapter does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run. [C. L. § 3167*. Cal. C. Civ. P. 362. General repeal not to affect limitations, ?2484. 2901. "Action," how construed. The word "action," as used in this chapter, is to be construed, whenever it is necessary to do so, as including a special proceeding of a civil nature. [C. L. § 3168. Cal. C. Civ. P. 2 363. Special proceedings in general, ?? 3627, 3628. CHAPTER 6. PARTIES. 2902. Action to be in name of real party in interest. Exceptions. Every action must be prosecuted in the name of the real party in interest. except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust. within the meaning of this section. [C. L. §§ 3169, 3171*. Mont. C. Civ. P. 2 570. Corporate and representative capacity may be pleaded generally, 3000. Parties having an interest, etc., may be joined as plaintiffs, 2913. Actions by executors, etc., 3912-3914. Executor who has not qualified not made a party, ?3920. An executor has no authority to maintain an action in his own name to have a trust declared in favor of a devisee to real estate, claimed as belonging to such devisee. Raleigh v. Hulett, 2 U. 122. A sheriff and his deputy are jointly and severally liable for the acts of the deputy, and may jointly maintain an action for the value of the property levied upon by the deputy and taken from his pos session. Burton v. Winsor Mining Co., 2 U. 240. In an action on a tax collector's bond, for his neglect or refusal to pay over to the treasurer taxes collected, the county court, and not the county, is the proper party plaintiff. S. L. Co. v. Golding, 2 U. 319. Where an action is begun by a plaintiff who is not the person beneficially interested therein, the court cannot by an order of substitution continue the action in the name of such real party in interest. Skews v. Dunn, 3 U. 186; 2 P. 64. Suit may be brought in the name of the lessee under a deed giving right to possession, since he is the real party in interest. Tarpey v. Deseret Salt Co., 5 U. 205; 14 P. 338. Trustees of school district are proper plaintiffs in action on bond of county collector running to whomsoever it may concern," to recover funds of district in collector's hands. Walton v. Jones, 7 U. 462; 27 P. 580. Assignee of chose in action having full apparent legal title, is real party in interest hereunder without respect to equities between him and assignor. Wines v. Rio Grande W. Ry. Co., 9 U. 228; 33 P. 1042. Where the owner of a note assigns it, authorizing the assignee to sue thereon and collect it, though the owner retained it in his possession, he cannot maintain an action thereon without a reassignment to him. Anderson v. Yosemite Mining Company, 9U. 420; 35 P. 502. 2903. Assignment of thing in action. Effect. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defense existing at the time of or before notice of the assignment; but this section does not apply to a negotiable instrument transferred in good faith and upon good consideration, before maturity. [C. L. § 3170. Cal. C. Civ. P. 2 368. Action not to abate by death or transfer, 2920. Party not to be deprived of benefit of cross-demand 2904. by death or assignment, 2971. Title of indorsee of negotiable instrument transferred before maturity, 22 1580-1583. Married woman as a party. A married woman may sue and be sued in the same manner as if she were unmarried. Mont. Civ. P. 572. Ohio 4996. Married woman as a party, 22 1199, 1201. Judgment against married woman, 3188. Property rights, etc., of married woman, Con. art. 22, sec. 2; 221198-1207. 2905. Husband and wife sued together. Either may defend. If husband and wife are sued together, the wife may defend for her own right, and if either neglect to defend, the other may defend for both. [C. L. § 3173*. Iowa, McClain's An. C. (1888) 3768*. 2906. Deserted husband or wife as a party. When a husband has deserted his family, the wife may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have, and under like circumstances, the husband shall have the same right. Iowa, McClain's An. C. (1888) ? 3769*. 2907. Infant or incompetent must appear by guardian. When an infant, or an insane or incompetent person is a party, he must appear either by his general guardian, or by a guardian ad litem appointed by the court, or judge thereof, in which the action is pending in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by the judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him. [C. L. § 3174. Guardian to appear for ward, ?? 4009, 4046. Cal. C. Civ. P. 372. 2908. Guardian ad litem, how appointed. When a guardian ad litem is appointed by a court, or the judge thereof, he must be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant. 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years and apply within twenty days after the service of the summons, or if under that age or if he neglect so to apply, then upon the application of a relative or friend of the infant, or of any other party to the action. 3. When an infant defendant resides out of this state, the plaintiff, upon motion therefor, shall be entitled to an order designating some suitable person to be guardian ad litem for such infant defendant, unless the defendant or someone in his behalf, within twenty days after service of notice of such motion shall procure to be appointed a guardian for such infant. Service of such notice may be made upon the general or testamentary guardian of such defendant, if he have one in this state; if not, such notice, together with the summons in the action, shall be served in the manner provided by law for publication of summons upon such infant if over fourteen years of age, or, if under fourteen years of age, by such service on the person with whom such infant resides. The guardian ad litem for such non-resident infant defendant shall have twenty days after his appointment in which to plead to the action. 4. When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding. [C. L. § 3175*. Cal. C. Civ. P. 373. Wisconsin ? 2614*. 2909. Unmarried female may sue for seduction. An unmarried female, under twenty years of age at the time of her seduction, may prosecute, as plaintiff, an action therefor, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor. [C. L. § 3176. Cal. C. Civ. P. 2 374*. Limitation of action, one year, 22879. 2910. Id. When parent or guardian may sue. A father, or in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, who, at the time of her seduction, is under the age of majority; and the guardian, for the seduction of the ward, who, at the time of her seduction, is under the age of majority, though the daughter or the ward be not living with or in the service of the plaintiff at the time of the seduction, or afterwards, and there be no loss of service. [C. L. § 3177. Cal. C. Civ. P. 2 375*. A 2911. Parent may sue for injury or death of minor child. father, or in case of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child; and a guardian, for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person who is reponsible for his conduct, also against such other person. [C. L. § 3178. Cal. C. Civ. P. 376. 2912. Heirs, etc., may sue for death of adult. Damages for death unlimited. When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against |