Orray Tart & Co. v. Daggett

There is nothing in our practice which warrants, as this replication supposes, the continuance from term to term of the process for the commencement of an action, by which the bar of the statute of limitations may be indefinitely postponed. We have no process roll upon which to enter each successive writ returnednon est, whether at a time regulated by practice or by statute, — no alias or pluries summons or capias issuable in renewal of a former writ, to be filed in court, with or without return, as the practice, or statute regulating it, may require; and the old general English practice in these respects, is quite as foreign to us, and finds as little in our modes of proceeding to rest upon, as the statutes of 2 and 3 Wm. IV. ch. 39, and 15 and 16 Vict. ch. 76, which have successively modified it.

But more than this, the 8th section of chap. 177 of our Revised Statutes expressly allows and limits the period of one year, after the abatement avoidance or defeat, "for any matter," of an action commenced within the period of general limitation, within which, though beyond that period, a new action may be commenced for the same cause. By this plain and comprehensive provision, applicable to every action commenced within time, which, without coming to the merits, has been defeated or avoided, our legislation has recognized, as far as was deemed proper, the policy of the English practice, as well as provided for other cases not reached by it. If, therefore, the entire novelty in our practice of this mode of indefinitely postponing the operation of the statute did not condemn it, this clause of the statute, as inconsistent with it, certainly would.

Besides, the effect of allowing this novelty would be to set up a mode in which the amendment of 1857, in respect to absent defendants, might be contravened. By that amendment, found in the 5th sect. of chap. 177 of the Revised Statutes, absence from the state saves the bar between, and only as between, residents; leaving it in force, as it ought to be, between citizens of other states, and between our own citizens and such. Against absent residents no such practice is needed to keep alive a cause of action. The citizens of other states are properly suable at home in the state or federal courts, — tribunals quite sufficient to answer all the demands of justice; and ought not, because at home, to be forever exposed by such continuances, to suit here upon claims long barred by the law of their respective domiciles, the policy and even terms of which are, in general, so precisely identical with our own.

The effect of the 8th section of the statute upon this action, in the position in which the pleadings present it, remains, however, to be considered. The note counted upon fell due in the early part of August, 1852; and would consequently be barred by the six years' limitation of the statute in the early part of August, 1858. Now, the replication avers, that on the 17th of July, 1858, before the bar was complete, the plaintiffs commenced an action upon this note against the defendant, by a writ issued out of the clerk's office of this court, returnable on the fourth Monday of September, 1858, and that this writ was, on that day, duly returned non est, by the deputy sheriff charged with its service. It was long ago decided here, that the mere issuing of a writ with the intent to have it served, was the commencement of an action within the meaning of our statute of limitations (Hall v. Spencer, 1 R.I. Rep. 17); and the avoidance or defeat of the plaintiffs' action thus commenced, by their inability to serve the defendant, brings it, in our judgment, within the saving of the above section of the statute. This writ, by our law, expired twenty days before the fourth Monday of September, 1858, the first day of the court to which it was returnable, which fell on the seventh day of September of that year; and as the present writ was issued on the 28th day of June, 1859, this action was commenced within a year of the defeat of a former action commenced within the time of general limitation, and so within the time in such case limited by the statute.

With surplusage, it is true, the replication thus sets up facts which avoid the bar of the statute; and there is nothing in our law or practice which requires, as the rejoinder, to be a good one, supposes, that an ineffectual writ must be recorded in the court which issues it, in order that it may, as the commencement of an action, extend the time of suit.

The demurrer to the defendant's rejoinder must therefore besustained, and the plea of the statute overruled.