Johnson v. Farwell

• Decision Date: 01 May 1831
• Citation: 7 Me. 370
• Parties: JOHNSON v. FARWELL, & als
• Court: Maine Supreme Court

7 Me. 370

JOHNSON v. FARWELL, & als

Supreme Judicial Court of Maine, Cumberland

May, 1831

THIS was an action of trespass for demolishing and destroying five dwelling houses, the property of the plaintiff; to which the defendants pleaded the general issue, and the statute of limitations. To the latter plea the plaintiff replied that the action was commenced and sued within six years after the trespass was done; on which issue was joined.

The trespass was alleged to have been done Aug. 20, 1824. The writ bore date Aug. 9, 1830, on which day the officer returned an attachment of the defendants' property; but no summons was delivered till Sept. 21. The defendants hereupon contended that the action was not commenced within the meaning of the statute, till the writ was actually served; and that therefore it was barred by the previous lapse of six years. But the Chief Justice, before whom the cause was tried, ruled that suing out the writ within six years was a sufficient commencement of the action; and instructed the jury that the only question, under the second issue, was whether the writ was actually sued out within six years after the trespass was committed.

The defendants offered to prove, in mitigation of damages, that the dwelling houses demolished were at that time houses of ill fame, and on that account were incapable of being profitably rented for any lawful purpose; and that they were on that account so worthless that they could not be let to persons of honest reputation. But this evidence the Chief Justice excluded; observing that the Court had no authority to presume that future tenants would be violators of the law or that the houses would have been leased for any unlawful purposes.

To these decisions of the Chief Justice the defendants took exceptions, a verdict having been returned for the plaintiff.

The exceptions are overruled, and judgment is to be entered on the verdict.

Fessenden and Neal, in support of the exceptions, argued from the difference of phraseology in the seventh and eighth sections of the statute of limitations; the former speaking of actions of trespass " commenced and sued," and the latter describing other actions " actually declared upon in a proper writ; " --that a difference was intended by the legislature between the actions mentioned in the two sections; and that in the former case personal notice to the defendant was necessary to the commencement of the suit; or at least there should be a complete service of the writ, in some mode prescribed by law. Cook v. Darling, 2 Pick. 605. If the mere purchase of a writ is to be " deemed and taken to be a due commencement of the action" in all cases, then the eighth section of the statute must be held wholly superfluous; which is contrary to the established rules of statutory exposition.

The greatest mischiefs also would result from the adoption of any rule which would put it in the plaintiff's power to save the statute by his own secret act, while the defendant, being lulled into security by the lapse of time, might lose the evidence necessary for his protection. It is imposing no hardship on an honest and vigilant plaintiff, to require him to give notice, within six years, that his claim will be enforced. To show that the principles of the English practice were consonant with those now contended for, they cited, 1 Saund. 63; 7 Mod. 5; Hollister v. Coulson, 1 Stra 550; Willes, 255; Leader v. Moxon, 2 H. Bl. 927; Harris v, Woolford, 6 D. & E. 617; 2 Ld. Raym. 883.

To the point of damages, they contended that the evidence offered was admissable; its tendency being to show that the buildings, having been used for base purposes, had acquired so bad a character that persons of honest fame would not occupy them; and that consequently their value was very small, except for purposes forbidden by law 4 Stark. Ev 1460; Cowp. 511; Bull. N. P. 27.

Longfellow for the plaintiff.

OPINION

PARRIS, J.

By the seventh section of the Stat. 1821, ch. 62, it is provided that all actions of trespass, & c. shall be commenced and sued within six years next after the cause of such action; --and we are called upon to decide whether this action was so commenced.

The statute does not declare what shall be deemed the commencement of such an action; but in the 8th section it is provided that any action of the case or of debt, grounded upon any lending or contract, & c. which shall be actually declared upon in a proper writ, returnable according to law, purchased therefor, within the term of six years next after the cause of such action accrued, shall be deemed and taken to be duly commenced and sued within the meaning of this act.--It has been ingeniously argued that inasmuch as the actual suing out the writ is, by statute, the commencement of the suit, in certain actions mentioned in the 8th section, the various kinds of actions mentioned in the 7th section, are not considered as thus commenced; the peculiar phraseology in the 8th section, defining the commencement of the suit, being omitted in the 7th section, which provides for the limitation of actions of trespass. The cause of this apparent inconsistency of the two sections may, perhaps, be explained by a reference to the statutes of limitations of Massachusetts, from which these sections were exactly copied; the 7th from an act passed in 1787, and the 8th from the act of 1794.

But from whatever cause it may have arisen, inasmuch as what shall be deemed the commencement of the action under the 7th section is not defined, we must construe these words, " commenced and sued" as we should any others, by applying to them the common law definition, when not defined by statute. We know of no other guide or safe rule of construction.

At what time then, is an action commenced and sued? The defendants' counsel have referred to the practice of the King's Bench and Common Pleas, in England, and cited sundry cases to show that the suit is not commenced until the writ is served and returned.

Suits are commenced in this State by original...