Spalding v. Butts , 6 Conn. 28 ( 1825 )

Peters, J.

Two questions arise in this case. 1. Was this action commenced within six months after notice that the claim was disallowed ? 2. Does the action previously commenced prevent the effect of the statute ?

1. The time when an action is said to be commenced, varies according to the course of the court. In the English Common Pleas, it is the original writ. In the King’s Bench, it may be the suing out of the latitat, or the filing of the bill. A latitat avoids the statute of limitations; but it must be continued until the time of trial. A discontinuance leaves the statute in force. Foster v. Bonner, Cowp. 454. Smith v. Bower, 3 Term Rep. 662. But in this state, the service of the writ is the commencement of the action. Clark v. Helms, 1 Root 486. Holdridge v. Wells, 4 Conn. Rep. 151. n. Jencks v. Phelps, 4 Conn. Rep. 149. In the case before us, the original writ was issued and served on the 2nd day of August, 1824; but the plaintiff’s claim was disallowed, and she was notified thereof, on the 4th day of August, 1823.

2. The statute in question is a positive bar, not removeable like other statutes of limitation, by a new promise, or a recognition of a subsisting debt; because it is not bottomed on a presumption that the debt is paid-avoidable by the slightest acknowledgment. Trueman v. Fenton, Cowp. 544. The sole object of the legislature was, to compel an early settlement of estates. Had they intended to prevent the statute from attaching to actions commenced after the time limited by the failure of antecedent defective suits, they would have said so, as they have done in relation to many other statutes of limitation. Stat. 211. tit. 59. sect. 8.

But the actions are not “ for the same matter, cause and thing, as claimed by the plaintiff’s counsel. One is debt; the other, account: and may have no more effect on each other than trover and ejectment by the same land. I am of opinion that there is no error in the judgment complained of.

The other Judges were of the same opinion.

Judgment affirmed.