38 Conn. 549 | Conn. | 1871
The right to make tender of performance, as incident to the legal duty to perform, is as old, as absolute and as well settled as any principle of the law. By the strict rules of the law it could not anciently be made after the day fixed for performance, and before suit brought, and such has been the rule in some of our sister states until a recent period, and until changed by statute. A different rule was adopted early in this state, (Tracy v. Strong, 2 Conn., 659,) and a
Where the tender is made before the commencement of the action, no costs need be tendered. This rule, so far as I can learn, is universal. Costs are not incident to the debt, or to the action until it is pending, and then only by force of statute, and although expense may have been made preparatory to its commencement, the plaintiff has no right to demand costs for that reason, nor is the defendant obliged to tender them until they become thus incident.
Every state has necessarily a rule which determines the stage in legal proceedings which shall be deemed a commencement of the action. In some of the states the rule is established by statute, in others by judicial decision. In this state it is fixed by decisions of this court, and is the actual service of process on the defendant—“ that notice given to the defendant which makes him a party to the proceeding, and makes it incumbent on him to appear and answer to the cause, or run the risk of having a valid judgment rendered against him by default.” Sanford v. Dick, 17 Conn., 216.
Such being the right of tender, without cost, before the commencement of suit, universally recognized, and such the rule in relation to the commencement of suit in this state, and this tender having been confessedly made before such commencement, we must hold the tender good unless the plaintiff has given us sufficient reason for departing from a rule which is as old as the law of tender.
On looking into his brief, we find two reasons assigned. The first is, that when an officer has so far commenced the service of a writ as to attach property, either by process of foreign attachment, or otherwise, the law requires that he shall complete the service for his own protection, and therefore the tender of the whole cost becomes necessary, and that, as the law requires the completion of the service, and never compels a party or an officer to do an act and then suffer for it, the costs made for the purpose of commencing the action should be tendered.
The import of this claim of the plaintiff is, that it is in
The answer to these claims is, first, that the equity is not what at first blush it seems to be; second, that a court of law could not yield to the equity, if as strong as it is assumed to be, without a departure from principle; third, that in every known case where an attempt has been made to induce the courts to adopt the equity and require the tender of costs, the attempt has failed.
I. The equity is not what at first blush it seems to be. The right of a defendant to tender is an absolute and important right, which a court, without just cause, cannot abridge. The right of the plaintiff to secure Ms debt by an attachment lien is also an absolute right, but it is arbitrarily created for the benefit of the plaintiff, and it is at his option whether he will incur the expense or not; and if he prefers to be at the expense of acquiring such a lien, with the hazard of having the debt tendered before the expense has become incident to the litigation by action pending, he can exercise his option, but as a privilege, not as a common law right.
But admitting that it is equitable that he should have the costs so made to acquire a lien, it is also equitable that the defendant should enjoy Ms right of tender without other burden or expense. The rule we are asked to adopt would burden his right materially. It would throw upon Mm the burden of ascertaining, in many cases, before he could tender, whether process had been issued and served or not, and if issued and served, by whom issued, and what the expense of it, to what officer delivered, and how served, if' served, and the expense of such service. And when he sought the necessary information, the creditor might refuse to give it, and would in many cases be tempted to do so. If the creditor referred the debtor
The reasons which have been urged why we should enforce the equity of the plaintiff do not reach to any right, but relate merply to the strength of the supposed equity. Their import is that the officer must complete his service, notwithstanding the tender, and that the plaintiff should be entitled to all the costs of completing the service. This claim would require the defendant to tender costs to be made in order to complete the service, and from the time that the writ was put in the hands of the officer, or as soon as any act was done by him. IIow are such future costs to be ascertained ? How is the debtor to know what further service the officer proposes to make ? Wliat protection has he against oppressive charges ? It is obvious, I think, that the counsel for the plaintiff have not sufficiently considered the consequences which would result from the adoption of the rule, and it is equally obvious that the reason urged is without force. A plaintiff to whom the debt has been tendered, and who has accepted it, may safely direct the service to be suspended, and the officer may
II. A court of law cannot yield to the assumed equity without a departure from principle. No right to costs by reason of an equity has ever been recognized by the common law. Costs are wholly the creature of statute, at law, and of discretion, in equity. Costs were first given to a defendant by the statute of 52 Henry III., chap. 6, in a particular case. TiE then they were unknown to the law. Subsequently they were given to plaintiffs by the statute of Gloucester, (6 Edw. I., chap. 1, sec. 2,) in all cases where they should recover damages, and then and thereby became incidents of an action. Since then they have been given to parties litigant, and regulated in England and this country, by a very great number of special statutes, or by rules of court authorized by statute. In this state, in addition to the general statute, there are more than forty special ones giving or regulating them. The right to costs, therefore, in all cases at law, on interlocutory or final decisions, in England and this country, if it exists, rests on the provisions of some statute, or some rule of court authorized by statute, and where no statute has given a right none exists, and this doctrine has never been permanently departed from, and is universally recognized.
III. Every attempt to induce courts of law to adopt the rule insisted on, whether made in England or in this country, has failed.
The first attempt in England was made in the case of Briggs v. Calverly in the court of Kings Bench, in 1800. The plaintiff replied to a plea of tender, that before tender he had retained an attorney who had applied for a latitat, and that there was not time after the tender to countermand its issuance, and that he had been subjected to expense and cost, which the defendant should have tendered. Lord Kenton overruled the replication, saying that it was impossible to contend that the tender came too late, it having been made before the commencement of the suit. Such is the law of England to this day.
A like decision was made in Ireland in Hepburn v. Plunkett,
The question also arose and was decided in this court in °the case of Holdridge v. Wells, in 1801, (cited 4 Conn., 141.) Judge Swift thus speaks of it in his Digest which was published in 1822: “A question has arisen in this state, whether after a debtor has knowledge that a writ is in the hands of the sheriff, though not served, a tender of the debt without the cost of suit would be good, and it was decided that a debtor could never be bound to tender for cost till it had accrued by the actual service of a writ, and till that time he was bound to tender the amount of the debt only; that this was a plain rule by which debtors might govern their conduct, while a contrary rule would perplex them with uncertainty, and involve them in disputes.”
In 1838 the Supreme Court of New York in the case of Retan v. Drew, 19 Wend., 304, held that the tender of money in satisfaction of a debt, after costs had been made before the commencement of the action by service of the declaration, without the tender of such costs, was not a good tender. This decision, although made by an able court, was not satisfactory to the profession, and in 1849 the question was again presented to the court in Hull v. Peters, 7 Barb., 331, and Retan v. Brew was overruled. A few extracts from the able and exhaustive opinion in that case will fully illustrate the subject. After referring to some previous cases the court say: “ In Retan v. Brew, however, the point was presented and decided. The action there was assumpsit; the plea, tender before suit brought. The plaintiff replied that the tender was made after the declaration was filed, though before it was served, and that the damages and no cost were tendered. Upon demurrer to the replication the court held it good, upon the ground that the plaintiff was entitled to the cost of preparing to commence his suit. The distinguished judge who
We thus see that, the Supreme Court of New. York in Retan v. Brew, without sufficient consideration, followed their sense of equity, and established the rule which we are asked
The foregoing cases are all that I have been able to find by extended search, in which an effort has been made to induce a court of law to require a tender of cost before suit pending, and in all the decisions have conformed to principle and been adverse.
For these reasons I think a new trial should be denied.
In this opinion Foster and Granger, Js., concurred. Park and Carpenter, Js., concurred in refusing a new trial on the ground that the rule of “ stare decisis” should he applied to former decisions of the court.