Obrázky stránek
PDF
ePub

An action on a demand taken out of the operation of the statute by a subsequent acknowledgment or part payment, is in the nature of an action on the old demand, and not on the new promise, and must be brought accordingly.-Carshore v. Huyck, 6 Barb. S. C. R. 583.

The last point to be considered is as to when an action is or is not to be deemed as commenced, for the purpose of taking a demand out of the operation of the different limitations prescribed as above stated.

The provision of the Code on this subject is as follows:

§ 99. An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest, with him.

An attempt to commence an action, is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff, or other officer of the county, in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days.

It will be observed on comparison of this section with that in the Code of 1848, that, now, service of summons on any one joint contractor, or co-defendant united in interest, is sufficient to take the case out of the statute as against all other parties in the same interest with the parties served, which formerly was not the case. See Vanderburgh v. Biggs, 3 How. 316.

On the other hand, the provisions of the former Code are restricted by its being now rendered imperatively necessary that service, either actual or by publication, must, in every case, follow the delivery of process to the sheriff, within sixty days thereafter, in order to render that delivery of any effect whatever.

Actual or substituted service must therefore, in all cases, be made within the period of limitation, or within sixty days after, at the very latest; and, in the latter case, the summons must be actually in the hands of the sheriff of the county of residence or last residence of the defendants, or one of them: or, in the case of a corporation, in those of the sheriff of the county in which its

business has been carried on, within the original period of limitation, whatever that period may be. It is, the writer feels, superfluous to insist at any length upon the vital importance of this rule being always borne in mind, and always acted upon, within the time allowed. It is a principle so clear as to amount to an axiom.

BOOK III.

OF THE COMMENCEMENT OF AN ACTION, AND THE PRELIMINARIES THERETO WHEN NECESSARY.

CHAPTER I.

OF THE PRELIMINARIES TO THE COMMENCEMENT OF AN ACTION IN CERTAIN CASES.

BEFORE an action can be commenced by, or on behalf of an infant plaintiff, a guardian for the purposes of the suit must be regularly appointed. If the summons be previously issued the whole proceeding will be irregular, and, on application, will be set aside, Hill v. Thacter, 3 How. 407; 2 C. R. 3; where the appointment of the guardian ad litem, not having been made till the day of actual service of the summons, and one day after its date, and that of the verification of the complaint, the action was held to have been irregularly commenced. The proceedings necessary for this purpose, and the decisions in relation thereto are treated of in a separate chapter, No. IV., of this portion of the work.

No action can be brought by the committee of an idiot, lunatic, or habitual drunkard, without the leave of the court by which the commission was issued, previously obtained for that purpose. Such leave must be applied for on petition, stating the facts, according to the old practice.

Nor can an action be brought against a lunatic, or other incapacitated party as above, judicially declared to be such, without a similar application being first made to the court. The provisions as to service of summons in such cases, as contained in sec. 134, make no difference; they do not authorize the bringing an action without leave, but duly regulate the mode of ser

vice in that action, when duly brought thereon. The proper course of the creditor in such cases, "is to petition the court for relief, and if his claim is undisputed, the committee will be ordered to pay it; if disputed, so as to bring its justice seriously in question, a reference will be ordered, or the plaintiff will be permitted to bring an action to determine its justice and extent." Soverhill v. Dickson, 5 How. 109. This is also a proceeding in which the forms of the old practice must be followed.

A receiver appointed by the court cannot, in general, bring or defend a suit, without its consent. Before doing the former, he must apply for leave, in the manner before indicated, with respect to the bringing of suits by committees, under similar circumstances. If he omit to do so, and fail in the suit, he will be personally liable for the costs.-Phelps v. Whitney, 3 C. R. 157. This is, however, not the case as regards receivers of a debtor's estate, appointed in the course of supplemental proceedings, after judgment.-Secs. 298 and 299 of the Code, and rule 81 of the supreme cou t. The authority of a receiver of this class to sue is general, and extends to all cases in which he is not restricted by the special order of the court. The only point in which his discretion in this respect is limited, is with respect to actions brought against insolvents, from whom he cannot obtain his costs. In these cases he will not be allowed them, unless, before bringing such action, he obtain the authority of the court, or the consent of all persons interested. See rule 81.

The circumstances under which a party laboring under disability must appear by a next friend, have been adverted to in a former chapter, under the head of parties. The selection must of course be made, in those cases, before process is issued, and the party selected must be of ability to answer for the costs of the suit.

In addition to legal disabilities, a party may labor under inability to sue with effect, occasioned by poverty. For this case, provision is expressly made by title I. of chap. VIII. part III. of the Revised Statutes, 2 R. S. 444, 445. A party in this position must apply to the court on petition, verified by affidavit in the form there expressly prescribed, according to the former practice in such cases. If the court be satisfied with the facts alleged, counsel and attorneys will be assigned to him,

and he will be permitted to prosecute his cause without being liable to the payment of any fees, or of the costs of the suit. The privilege thus granted, is, however, revocable for misconduct; and an order of this nature, though generally a preliminary to suit brought, is, it would seem from sec. 2 of the title before cited, obtainable in a suit then actually existing.

Under sec. 430 of the Code, the leave of the court is also made a pre-requisite to actions brought by the attorney-general, for vacating the charters, or annulling the existence of corporations other than municipal, under the peculiar circumstances there specified.

CHAPTER II.

OF PROCEEDINGS FOR SETTLEMENT OF A CONTROVERSY, WITHOUT ACTION BROUGHT.

THE modes of accomplishing this object as pointed out by the Code are twofold,--1st. The bringing such controversy to a final decision upon a case, without going through the forms of an action; and 2d. The confession of judgment in respect thereof; which subjects will be successively treated. Of a somewhat analogous nature to the former, is the reference of a claim to arbitration under the old practice, but which mode of proceeding is in nowise affected by the Code.

The submission of a controversy without action is provided for by secs. 372 to 374 of the Code. The parties are thereby empowered to agree upon a case containing the facts upon which such controversy depends, and to present a submission of the same to any court which would have jurisdiction of an action when brought; it being also made to appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights in question. The case having been drawn, and the submission signed by the parties, the matter is then to be heard at the general term, on printed papers, see

« PředchozíPokračovat »