Burdick v. Green, 18 Johns. 14

Burdick v. Green

18 Johns. 14 | N.Y. Sup. Ct. | 1820

Platt, J.,

delivered the opinion of the Court. The Case states, that “ from the caption of the declaration, and the memorandum of the nisi prius record, it appeared that *20the suit was commenced on the 17th oí August, 1816.” Bui j presume that those relate to the filing of the bill, or deck-ration*

-At the trial a question was raised, whether the plaintiff had a right to elect his count, on which he would apply the note declared on; and it was properly ruled that he might.

No attempt was made to prove that the discharge, under ' the insolvent act, was fraudulent; nor was there any evidence offered in relation to that discharge.

The discharge being formally pleaded by the defendant^ and the plaintiff having replied fraud, the discharge was admitted by the pleadings. But as it appears on the face of the pleadings, that the contracts declared on were made "< prior to the insolvent act of 1811, under the late decision - of the Supreme Court of the United States, the plaintiff' might have successfully demurred to that plea ; and although ’ he has not done so, and has chosen to go to trial upon the ; issue of fact, that is, fraud or no fraud in the discharge, and that issue must be considered as found against him; yet as the allegation in the plea, if true, Contains no ground 4-of defence, we should be justified in rendering judgment for the plaintiff on that point, veredicto non obstante.

But we are of opinion, that the defence was complete, under the plea of the statute of limitations. The note was ‘ due, and the whole cause of action arose, on the lst day of August, 1810. There is no doubt as to the rule, that the.' issuing of the writ is the commencement of the suit, in all cases where the time is material. The question on this evidence is, whether the plaintiff has proved that the capias was sued out before the six years expired ?

We do not think that it is indispensably necessary in such cases to prove an actual delivery of the writ to the sheriff; provided it be shown, that it was actually made out and sent to the sheriff, or his deputy, by mail, or otherwise, with a bona fide and absolute intention of having it served;But such intention must be positive and unequivocal.

The evidence is not satisfactory on that point. The writ is proved to have been made out by the attorney, and delivered to the plaintiff, before the note tvas reassigned to *21the plaintiff; and, of course, before his cause of action accrued. At that time the note belonged to Ketchum. The attorney directed the plaintiff not to deliver the writ to the sheriff till the 31st of July. The whole transaction shows, that it was uncertain when, if ever, the note would be reassigned by Ketchum to the plaintiff; and in issuing the writ, no respect was had to any other cause of action than the note itself; and it is fairly to be inferred, that if the note had not been obtained from Ketchum, the writ would have been suppressed by the plaintiff, and never delivered to the sheriff. The reassignment of the note by Ketchum to the plaintiff, bears date the 31st of July, 1816, at New-York, and was sent, by mail, from thence to Granville. There is no evidence when it was actually received ; but it could not have reached Granville, until after the 31st of July, 1816. It is not shown when the writ was delivered to the sheriff; and the reasonable presumption is, that all-remained in suspense, and that there was no positive intention to institute a suit until the note was actually received by the plaintiff’s attorney from Ketchum; and then the attorney entered the suit in his register, he says, “ as of the 31st of July, 1816.” The truth, no doubt, is, that he received the assigned note after the six'years had expired j and he, probably, then antedated the entry of the suit in his register j which entry never would have appeared in his register, if Ketchum had refused to reassign the note. Such reassignment was an event uncertain at the time the attorney gave the writ to his client, to be used or not, according to that contingency ; and the plaintiff could not make his election, whether to consider the suit commenced or not, until the contingency was known to him; which was not until after six years had elapsed.

Upon this view of the subject, it is immaterial which count the plaintiff elected to claim under; for if he relies on the original ground of indebtedness, as for goods sold, &c. the evidence is equally strong to show, that the writ was not issued with an absolute and unconditional intention of having it served, until after the statute had run six years.

Besides, the original agreement, upon the dissolution of the partnership between the plaintiff and defendant, which *22formed the consideration of the note, Fas reduced1 to wriV ting at the time, and signed by the parties1; and the objection was well taken at the trial, that the contract could not be proved by parol. The plaintiff failed to produce the written agreement, and on that ground, the claim as-for goods sold, &c. failed.

A verdict was taken for the plaintiff, subject to the opinion of the Court, upon all the questions of law and fact.

We are of opinion that the defendant is entitled to judgment, pursuant to the stipulation hr the case.

Judgment for the defendant* "