14 Wend. 649 | Court for the Trial of Impeachments and Correction of Errors | 1835
The question in this case turns upon the sufficiency of the rejoinder to the plaintiff’s replication, put in in answer to a plea of the statute of limitations.
It is not necessary to inquire whether a rejoinder in the form of that put in in this case would be good, under the provisions of the Rvised Statutes, without an averment that the defendants were neither of them in Kings county at the time of the issuing of the first writ, or an allegation that the sheriff was directed not to serve the same. It is evident, from the 45th section of the title of the Revised Statutes relative to the time of commencing actions, 2 R. S. 300, § 45, that none of the provisions of the fourth article of that title are applicable to an action which had been commenced, in the manner before required by law, at the time the Revised Statutes went into effect. By that section it is declared, in express terms, that all such actions, and all rights of action or of entry then existing, should remain subject to the laws which were previously in force. It is therefore only necessary to inquire whether this rejoinder would have been good previous to the recent revision of the laws.
It is obvious, from the note of the revisers to the provisions of the Revised Statutes on this subject, that they considered the principle as settled in this state, that the issuing of a writ, or rather the delivering it to a sheriff and obtaining his return thereon, was sufficient to save the statute of limitations, although the sheriff had recived instructions from the plaintiff not to serve the writ. The case of Beckman Elmendorf v. Satterlee, 5 Cowen’s R. 519, decided by Mr. Justice Woodworth, does undoubtedly go that length. But notwithstanding that decision, I cannot think the sheriff was authorized, under his oath of office, to make a false return upon the writ, by stating that the defendant could not be found in his bailiwick, when in truth the only reason why the defendant was not arrested, was because the sheriff had been instructed by the plaintiff not' to execute the process of the court. The judgment of the court in that case was probably right, upon the ground that the defendant was not authorized, under the
In the present case, the suit was commenced, so far as the forms of law were concerned, when the original capias was delivered to the sheriff" of Kings, with authority to him to arrest the defendants thereon, if they should be found within his bailiwick. The allegation that the general residence of the defendants was in the city of New-York, is not equivalent to an averment that they were not in fact within the bailiwick of the sheriff of Kings at the time the writ issued to that county, or that the plaintiff was aware of the fact that they resided in another county. In the cases of Bremion v. Evelyn, 1 Levintz’s R. 111, and Hall v. Wybourn, Carth. 136, it seems to have been conceded by the court, that a plaintiff might file an original, or sue out a latitat, for the mere purpose of saving the statute, although the defendant xvas out of the realm, or had privilege of Parliament, so that the process could not be made effectual against him, except by a continuance thereof after his return, or when his privilege had expired; and such appears to have been the practice both in this country and in
The suit in this case having been commenced previous to that portion of the Revised Statutes taking effect, which contain the new provisions relative to the commencement of suits for the saving of the statute of limitations, those provisions do not affect this case, as the statute cannot have a retro-active operation. 2 Paige’s Ch. R. 285. 4 Wendell, 206. 8 id. 661. 10 id. 281, 365. The only question, therefore, is whether the facts alleged in the rejoinder and admitted by the demurrer are a sufficient answer to the replication.
The fact that the first capias was issued to the sheriff of Kings, when the defendants were notoriously residents of the city and county of New-York, is not sufficient of itself to show that the suit was not properly commenced. There was no prohibition to the issuing of a capias into a county different from that in which the defendant resided, to save a demand from the operation of the statute of limitations, until the pro
There is some difference of opinion whether the intent of the plaintiff to deprive the defendants of the benefit of the statute of limitations, as alleged by the rejoinder, is traversable. This averment is nothing more than the allegation that the writ was issued in fraud of the statute; the latter is the conclusion of the party, and the other is immaterial; but the allegation that the writ was issued with the intent that the sheriff should not execute it, and arrest the defendants, in the connexion in which it stands with the other facts set forth in the rejoinder, was traversable, and if the plaintiff was unwilling to admit it, he should have taken issue and afforded the defendants an opportunity to prove it.
Considering the facts then as established that the writ was issued to a different county from that in which the defendants resided, with an intent that they should not be arrested on it, the question arises whether it was such a commencement of the suit as would save the statute. It is admitted that it would not be, under the existing statute, and that this statute is not applicable to the present case. I think it must also be admitted, that the principle of this case is exactly that decided in Beekman v. Satterlee, 5 Cowen, 519, so that the supreme court, with that decision before them unreversed, could not do otherwise than to decide in favor of the demurrer. It is only necessary, therefore, to determine whether that decision was correct.
What shall be deemed the commencement of a suit has been a fruitful subject of argument and litigation in England and this country; but for the purpose of saving the statute of limitations, it has been long settled that the issuing of a capias to a sheriff was sufficient, and that on his return of non est, the suit could be kept alive indefinitely by continuances, down to such a time as the defendant could be arrested. The
But it is said the motive is not really to commence a suit, but to feign to commence one, in order to preclude the defendant from his plea that the action is barred by the statute of limitations. Is it possible that a fiction which is allowed to one party for the purpose of advancing substantial justice, can be converted into the means of depriving the other of a substantial right ? “ It cannot be endured,” says Lord Mansfield, “ that a mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the thing.” Here we come to the naked fact
That it is and always was necessary, for the commencement of a suit, that a process should be sued out with a bona fide design of having it served, i. e. of having it the beginning of a suit, is a self-evident proposition. An averment to this effect, I have before observed, is always to be found in the English precedents; and if a practice has been indulged of regarding a writ issued without an expectation of its being served, as a good commencement of a suit, it has always been on the presumption that the party desired and endeavored to have it served. But when this presumption is met by the acknowledgment of the party, that he sent the writ to a county where he knew the defendant was not, and with the intent that the writ should not be served—to regard this, I say, as the commencement of a suit, would be disgraceful to the administration of justice. To borrow another expression from Lord Mansfield, it is if to allow chicane to obstruct right, by the help of a legal fiction, contrary to the truth of the fact.” The argument that is found in Beekman v. Satterlee, and is again pressed into this case, that the defendant is no worse situated because of the plaintiff’s preventing the writ being served, than he would be if the service had been prevented by any other cause, is just as good an argument against having the writ issued at all. When the fiction is wholly at the expense of the defendant, it is very ungracious to tell him, that as it don’t do him any good, he cannot complain if it be disregarded. Doubtless he would not, if he were to be left where he would be if there were no such fiction: but this is not
On the question being put, Shall this judgment he reversed ? the members of the court voted as follows :
In the affirmative—The President of the Senate, and Senators Beckwith, Edmonds, Fox, Griffin, Lacy, Loomis, Mac Donald, M’Dowell, Seger, Tracy, Willes—12.
In the negative—The Chancellor, and Senators Armstrong, Beardsley, Cropsey, Downing, Edwards, Fisk, Gansevoort, Halsey, Jones, Lansing, Mack, Maison, Van Schaick—14.
Whereupon the judgment of the supreme court was affirmed.