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The law, as it formerly stood in reference to the statute not running in the case of an alien enemy, during the continuance of the war with his country, is declared by sec. 103.
The reversal on appeal of the judgment on an action commenced within the periods of limitation, confers a fresh right of action upon the plaintiff, or his heirs or representatives, if asserted within one year after that reversal.—Sec. 104.
The granting of an injunction staying the commencement of an action, or any statutory prohibition of the same nature, suspends the operation of the statute altogether, during the continuance of either.Sec. 105.
We now arrive at the consideration of those cases in which the operation of the statute may be suspended by the acknowledgment of the parties.
The provision of the Code in this respect (sec. 110) is as follows:
$ 110. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of tbe operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.
This provision effects, as will be seen, a material alteration from the former law on the subject, by which, under certain circumstances, a parol acknowledgment was sufficient to take a case out of the operation of the statute.-See Watkins v. Stevens, 4 Barb. S. C. R. 168. Now, however, nothing short of a written acknowledgment, or an actual payment or part payment of principal or interest, will suffice to do so.
In McMullen v. Grannis, 10 L. 0. 57, the defendant, having previously accepted a draft in respect of an original indebtedness of the plaintiff, and having subsequently deposited the note of a third party ; by different letters acknowledged that a balance was due from him on his note, and, on the second occasion, made a remittance, “ to be applied on account of his note,"
-the two letters being within the six years, though without them the original indebtedness would have been barred. It was held that such letters amounted to a promise sufficient to take the case out of the statute, and, (there being no evidence of any other,) that the referee in that case was warranted in inferring that the promise related to the particular indebtedness there in question. " When a promise of this kind is shown,
the onus lies upon the party setting up the statute to show that there was another indebtedness to which it might refer, and, when no other indebtedness appears, the promise will be held to refer to that which was subsisting when the promise was made."
In cases of joint indebtedness, the acknowledgment of either party will of course suffice to bind both, while the joint interest subsists. If, however, that joint interest be severed, the subsequent acknowledgment of either of the parties will not suffice to revive it as against the other. Thus in Lane v. Doty, 4 Barb. S. C. R. 530, it was held that a surviving principal on a joint promissory note, could not revive the debt by acknowledgment or part payment, as against the representatives of the surety deceased, even though the transaction took place within six years. In Van Keuren v. Parmelee, 2 Comst. 523, it was in like manner held that, after the dissolution of a partnership, a subsequent acknowledgment by one of the partners did not avail to revive the debt as against the firm.
The same principle seems to have been applied in Bogart v. Vermilye, 3 C. R. 142, to the case of joint and several indebtedness. No facts are given, but the case is there stated as follows:
A promise to pay, and part payment, by one of two joint and several debtors, within six years next before suit brought, does not take the case out of the statute of limitations as to the other defendant.
The case of Wadsworth v. Thomas, 7 Barb. S. C. R. 445, 3 C. R. 227, before cited at the commencement of this chapter, is distinct authority that no promise, subsequent to the passing of the Code, will avail to revive a debt already barred by the statute, previous to its operation ; unless that promise be in the form here prescribed : although, had it been made under the old law, it would then have been sufficient.
In Woodruff v. Moore, 8 Barb. 171, it was held that the payment of a note by the endorser, after the statute of limitations had expired, on action brought against him by the then holder before the statute had run out, did not avail to revive his claim against the maker, against whom the statute had also run. The payment was held to be a payment on his own contract as endorser, and not to have been money paid to the use of the maker.
An action on a demand taken out of the operation of the statute by a subsequent acknowledgment or part payment, is in the nature of an action on the old demand, and not on the new promise, and must be brought accordingly.-Carshore v. Huyck, 6 Barb. S. C. R. 583.
The last point to be considered is as to when an action is or is not to be deemed as commenced, for the purpose of taking a demand out of the operation of the different limitations prescribed as above stated.
The provision of the Code on this subject is as follows:
§ 99. An action is commenced as to each defendant when the summons is served on bim, 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. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days.
It will be observed on comparison of this section with that in the Code of 1848, that, now, service of summons on any one joint contractor, or co-defendant united in interest, is sufficient to take the case out of the statute as against all other parties in the same interest with the parties served, which formerly was not the case.-See Vanderburgh v. Biggs, 3 How. 316.
On the other hand, the provisions of the former Code are restricted by its being now rendered imperatively necessary that service, either actual or by publication, must, in every case, follow the delivery of process to the sheriff, within sixty days thereafter, in order to render that delivery of any effect whatever.
Actual or substituted service must therefore, in all cases, be made within the period of limitation, or within sixty days after, at the very
latest; and, in the latter case, the summons must be actually in the hands of the sheriff of the county of residence or last residence of the defendants, or one of them: or, in the case of a corporation, in those of the sheriff of the county in which its business has been carried on, within the original period of limitation, whatever that period may be. It is, the writer feels, superfluous to insist at any length upon the vital importance of this rule being always borne in mind, and always acted upon, within the time allowed. It is a principle so clear as to amount to an axiom.
OF THE COMMENCEMENT OF AN ACTION, AND THE PRE
LIMINARIES THERETO WHEN NECESSARY.
OF THE PRELIMINARIES TO THE COMMENCEMENT OF AN ACTION
IN CERTAIN CASES.
Before an action can be commenced by, or on behalf of an infant plaintiff, a guardian for the purposes of the suit must be regularly appointed. If the summons be previously issued the whole proceeding will be irregular, and, on application, will be set aside, Hill v. Thacter, 3 How. 407; 2 C. R. 3 ; where the appointment of the guardian ad litem, not having been made till the day of actual service of the summons, and one day after its date, and that of the verification of the complaint, the action was held to have been irregularly commenced. The proceedings necessary for this purpose, and the decisions in relation thereto are treated of in a separate chapter, No. IV., of this portion of the work.
No action can be brought by the committee of an idiot, lunatic, or habitual drunkard, without the leave of the court by which the commission was issued, previously obtained for that purpose. Such leave must be applied for on petition, stating the facts, according to the old practice.
Nor can an action be brought against a lunatic, or other incapacitated party as above, judicially declared to be such, without a similar application being first made to the court. The provisions as to service of summons in such cases, as contained in sec. 134, make no difference; they do not authorize the bringing an action without leave, but duly regulate the mode of ser