Clark v. Slayton ( 1885 )

An action at law is in general regarded as commenced, so as to avoid the statute of limitations, when the writ is completed with the purpose of making immediate service. But when there is no intention to have it served, or it cannot be served until some further act is done, the action is not deemed to be commenced until such act is performed. Robinson v. Burleigh,5 N.H. 225; Graves v. Ticknor, 6 N.H. 537; Hardy v. Corlis, 21 N.H. 356; Mason v. Cheney, 47 N.H. 24; Brewster v. Brewster, 52 N.H. 60. The same rule is applicable to suits in equity. Leach v. Noyes, 45 N.H. 364. A bill in equity must be filed in the clerk's office, and an order of notice obtained, before it can be served upon the defendant. Rules 11, 13. The date of the filing is therefore the earliest time which can be taken as the commencement of the suit.

The plaintiff's action is barred by the statute of limitations. This result makes it unnecessary to consider other questions raised by the case.

Exceptions overruled.

ALLEN, J., did not sit: the others concurred.