Randall & Durant v. Bacon

49 Vt. 20 | Vt. | 1876

The opinion of the court was delivered by

Ross, J.

The amount tendered the plaintiffs by the defendant was sufficient to cover the sum found due them at that time by the auditor, unless they have the right to add the expense of the writ in this suit. The plaintiff's had sued out the writ and placed it in the officer’s hands for service, but the same had not been served at the time the tender was made. The statute (Gen. Sts. c. 125, s. 7) provides, that after a suit has been commenced, a tender, to be effectual to bar further costs, must be sufficient to cover the debt and costs that had accrued before the making of the tender. Hence the real question is, whether this-suit was legally commenced before the tender was made. For the single purpose of preventing the running of the Statute of Limitations, the time of the issuing of the writ, if served and returned within the time limited therein, is held in this state to be the commence-merit of the suit. Such act of the creditor evinces a settled purpose no longer to sleep upon his rights and allow the time limited by statute, in which the law will presume'the debt to have been paid, to elapse. For all other purposes, the commencement of the suit is held to be, in suits inter partes, the service of the writ upon the defendant, or the bringing the defendant into such legal relations to the- plaintiff as, if the writ is duly returned and entered in court, will give the court jurisdiction of the defendant. It' might be somewhat; different in legal proceedings in the nature of proceedings in rem. The foregoing seems to be the result of the doctrine announced in Kirby v. Jackson, 42 Vt. 552. The question in regard to the exact point in legal proceedings when the plaintiff first has the right to tax costs against the defendant, is raised for the first time in this state, as far as wé are aware, in the case at bar. It is conceded by the plaintiffs that that point is not reached until the suit, as regards the defendant, is commenced. The question in the casó at bar has been before the courts of England, and in some of the states. Briggs v. Coverly, King’s Bench, 1800 ; Hepburn v. Plunkett, 8 Irish Law Rep. 10; Hull v. Peters, 7 Barb. 331, overruling Reton v. Drew, 19 Wend. 304 ; Studwell v. Cooke, 38 Conn. 549. In the last case, the authorities are carefully reviewed, and in-all the cases cited it is held, as we think, correctly, that the service of the writ is the commencement of the suit for the purpose of taxing costs.

Judgment affirmed.