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Swift v. Vaughn

6 Hill & Den. 488 Court N.Y. Sup. Ct. English

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Majority

p. 488
Swift vs. Vaughn, impleaded &c.

Headnote

A plea that the defendant did not undertake and promise &c. within six years next before the exhibiting of the bill, tenders an immaterial issue. The plea should deny that the defendant undertook and promised within six years next before the commencement of the suit.
Where, to a plea that the defendant did not undertake &c. within six years next before the exhibiting of the bill, the plaintiff replied that the defendant did undertake &c. within six years next before the commencement of the suit, and the defendant demurred; held, that the plaintiff was entitled to judgment upon the demurrer.
The declaration contained the common counts in assumpsit, to which the second plea was, that the defendant .did not at any time within six years .next before the exhibiting of the bill of the plaintiff, undertake &c. The third plea was, that the supposed causes of action did not nor did either of them accrue
p. 489
within six years next before the exhibiting of the bill &c. Replications, affirming the matters denied by the pleas, but using the words the commencement of the suit, instead of “ the exhibiting of the bill.” Demurrers, assigning for cause that the replications do not follow the words of the plea as to the exhibiting of the bill, nor show how the suit was commenced. Joinder.
T. Jenkins, for the defendant,
cited 14 Wend. 83 ; 1 Chit. PI. 554; 13 Wend. 495 ; 19 id. 216 ; 2 Hill, 134 .
W. Hunt, for the plaintiff,
cited 15 John. 326 ; 3 Johns. Cas. 150 ; 3 T. R. 186; 1 Chit. Pl. 583.

The notion that suits are commenced by bill, except when brought against officers of the court, was always a pure fiction in this state; and if it is still proper to keep it up for any purpose, it is time that it was laid aside in pleading the statute of limitations. Suits against natural persons are now commenced either by capias or by declaration; (2 R. S. 347, § 1;) and they are not well begun for the purpose of saving the statute until the process or declaration has been actually served, or the capias has been issued to the sheriff of the proper county, in good faith, and with the intent to have it served. (Id. 299, § 38.) The pleas do not tender an issue upon a material point. It may well be that the defendant did not promise at any time within six years next before the exhibiting of the bill, although the suit was commenced within five years after the promise. There has been no bill, and never will be. I think the pleas are bad. They certainly are so, unless we construe the words “ exhibiting of the bill,” as equivalent to “ commencement of the suit.” And then the defendant should not have complained of the replications for using the language which he should have used. In either view of the question, the demurrers are not well taken.

■When the process was not served within the six years, and the plaintiff relies on prior process and continuances to save the statute, there, if he makes an issue' on the exhibiting of the bill,

p. 490
he must reply specially, or he will fail on the trial." (Richmond v. Little, 2 Hill, 134 .) But where the issue is, as it should be, on the commencement of the suit within six years after the promise, the replication may be as general as the plea, and the whole matter may be given in evidence on the trial. (Bank of Orange County v. Haight, 14 Wend. 83 .) The plaintiff is entitled to judgment.

Judgment for the plaintiff.

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