Citation Numbers: 21 How. Pr. 283
Judges: Allen
Filed Date: 6/15/1861
Status: Precedential
Modified Date: 1/12/2023
From a careful reading of the evidence, in connection with the findings of facts and conclusions of law embodied in the case, it is very evident that the plaintiff has been less careful in looking after the settlement of the case than he would have been had the interests of a client, rather than his own interests, been involved. The case does not, I am convinced, correctly set forth the décisions of the referee; and, perhaps, if the parties had complied with the rules of the court, and printed as a part of the case the judgment roll, including the report of the referee, we should have had something by which to correct the case as settled. But as the plaintiff himself, a counsellor of this court, has accepted the case as properly settled, and consented to thus argue the appeal upon an imperfect record, we may very properly give judgment upon the papers, with which he is content.
The case, as settled, makes the referee find that the claim for services in the Leland and Tracy suit were performed between May 1, 1850, and March 1, 1851, and there is no evidence in the case to show that the services terminated before March, 1851. The action was commenced September 16,' 1856, less than six years after the last service rendered, and at the time of the commencement of the action was. not barred by the statute of limitations. But the referee held upon the trial, that the original complaint did not embrace this claim, and in August, 1851, it was so amended as to include it, and the trial proceeded upon the complaint as amended, and an answer to it; and the case makes the referee decide that the claim is barred because more than six years had elapsed after the cause of action had accrued, and before it was admitted into the complaint
Judgment must be reversed and a new trial granted, costs to abide event.