Cross v. Barber

• Decision Date: 07 July 1888
• Citation: 16 R.I. 266,15 A. 69
• Parties: CROSS et al. v. BARBER et ux.
• Court: Rhode Island Supreme Court

15 A. 69

16 R.I. 266

CROSS et al.

v. BARBER et ux.

Supreme Court of Rhode Island.

July 7, 1888.

On petition for a new trial.

Albert B. Crafts, for plaintiffs. Thomas H. Peabody and Charles Perrin, for defendants.

MATTESON, J. This is an action of trover for the conversion of certain goods and chattels, to which the plaintiffs claim title as administrators, with the will annexed, on the estate of Henry M. Barber, late of Westerly, deceased. At the trial the plaintiff produced as a witness Edward G. Cundall, who testified that on February 26, 1887, he was sheriff of Washington county; that on that date, before the service of the writ in this suit, but having the writ with him, he demanded from the defendants in behalf of the plaintiffs all of the property named in the writ, except the bay horse. The plaintiffs offered to prove by this witness that the defendants, at the time of the demand, and before service of this writ, refused to deliver the property in compliance with the demand, but the court excluded the testimony, and the plaintiffs excepted. They now petition for a new trial on the ground that the exclusion of the testimony was erroneous.

That the plaintiff must have a right of action at the commencement of the suit, to entitle him to recover, is a proposition too well established to be questioned. Assuming, therefore, for the purpose of the present inquiry, that there was no other evidence of a conversion, so that proof of a demand and refusal was essential to make out a conversion, the question which arises is, were the demand testified to by the witness, and the refusal to comply with it, which the plaintiff offered to prove by his testimony, prior to the commencement of the suit? What is the commencement of a suit is a matter about which courts have differed. In Connecticut it is held that it is the service of the writ which is the commencement of the suit. Clark v. Helms, 1 Root, 487; Jencks v. Phelps, 4 Conn. 149; Spalding v. Butts, 6 Conn. 28; Gates v. Bushnell, 9 Conn. 530. And the word "service," as applied to the commencement of a suit, is defined as "that notice given to the defendant which makes him a party to the proceeding, and makes it incumbent on him to appear and answer to the case, or run the risk of having a valid judgment rendered against him." Sanford v. Dick, 17 Conn. 213, 216. In Vermont, for the purpose of preventing the barring of a claim by the statute of limitations, the rule is that the taking out of the writ with the intent to have it served and pursued, is the commencement of the suit, if the writ be served and returned. Allen v. Mann, 1 D. Chip. 94; Day v. Lamb, 7 Vt. 426. But for other purposes, when the question is whether the cause of action has accrued, as in trover, when a demand is necessary as evidence of a conversion, or in assumpsit, when, from the nature of the contract, a demand is essential to the right of recovery,—the service of the writ is considered the commencement of the suit. McDaniels v. Reed, 17 Vt. 674, 679. In this state, and in this country generally, it has been held that the issuing of the writ is the commencement of the suit. Hail v. Spencer, 1 R. I. 17; Carpenter v. Butterfield, 3 Johns. Cas. 145; Lowry v. Lawrence, 1 Caines, 69; Boyce v. Morgan, 3 Caines, 133; Bird v. Caritat, 2 Johns. 342; Cheetham v. Lewis, 3 Johns. 42; Fowler v. Sharp, 15 Johns. 323; Burdick v. Green, 18 Johns. 14; Ross v. Luther, 4 Cow. 158; Hogan v. Cuyler, 8 Cow. 203; Parker v. Colcord, 2 N. H. 36; Society v. Whitcomb, Id. 227; Ford v. Phillips, 1 Pick. 202; Swift v. Crocker, 21 Pick. 241; Thompson v. Bell, 6 T. B. Mon. 559; Chiles v. Jones, 7 Dana, 545; Fowler v. Byrd, 1 Hemp. 213; Whitaker v. Turnbull, 18 N. J. Law, 172; Feazle v. Simpson, 1 Scam. 30; Cox v. Cooper, 3 Ala. 256. But when it is said that the issuing of the writ is the commencement of the suit, it is not intended that the mere filling up of the process, or the mere sending of it to an officer, or placing of it in his hands, is such commencement. These acts, to constitute them the commencement of the suit, must be accompanied with a bona fide, absolute, and unequivocal intention to have the writ served. Burdick v. Green, 18 Johns. 14; Visscher v. Gansevoort, Id. 496; Ross v. Luther, 4 Cow. 158; Society v. Whitcomb, 2 N. H. 227; Johnson v. Farwell, 7 Me. 370; Whitaker v. Turnbull, 18 N. J. Law, 172. In Society v. Whitcomb, 2 N. H. 227, 230, the court uses this language: "But by the procurement of a blank form from the clerk or an attorney an action is not 'brought,' because such form is not a writ, though by the procurement of such a form, suitably filled up and intended to be served, the 'writ' or 'action' may well be called 'commenced,' 'sued out.' * * * It is the intention and act combined which in fact constitute the institution of the suit." Burdick v. Green, 18 Johns. 14, was a suit upon a note in which the defendant pleaded the statute of limitations. The note was dated June 21, 1810, and was payable to the plaintiff, or order, on the first day of August following. The plaintiff had indorsed the note to one Ketcham, who had re-indorsed it to the plaintiff. The reindorsement to the plaintiff bore date July 31, 1816, and was sent by mail from New York to Granville. There was no evidence when it was actually received by the plaintiff or his attorney, but it could not have reached Granville until after July 31, 1816. While the note was the property of Ketcham, and while it was uncertain when, if ever, he would reindorse the note to the plaintiff, the attorney made out the writ, and delivered it to the plaintiff with the direction not to place it in the hands of the sheriff until July 31, 1816. When it was placed in the sheriff's hands, did not appear. The court thought it fairly inferable from the evidence that if the note had not been obtained from Ketcham, the writ would have been suppressed by the plaintiff, and would never have been delivered to the sheriff, and hence that there was no positive intention to institute the suit until the note was actually received; and they held that, as...