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“ Whereas, by an act passed in England in the twenty-first year of the reign of King James the First, it was, among other things enacted, that all actions of account and upon the case, other than such accounts as concerned the trade of merchandize between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract, without specialty, and all actions of debt for arrearages of rent, should be commenced within three years after the end of the then present session of parliament, or within six years next after the cause of such actions or suits, and not after; and whereas a similar enactment is contained in an act passed in Ireland in the tenth year of the reign of King Charles the First ; and whereas, various questions have arisen, in actions founded upon simple contract, as to the proof and effect of acknowledgments and promises, offered in evidence for the purpose of taking cases out of the operation of the said enactments, and it is expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof; Be it therefore enacted, by the King's Most Excellent Majesty, and by and with the consent of the Lords spiritual and temporal, and commons, in this parliament assembled, and by the authority of the same, that in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by word only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them; provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever ; provided also, that in actions to be commenced against two or more such joint contractors or executors or administrators, if it shall appear at the trial, or otherwise, that the plaintiff though barred by either of the said recited acts or this act, as to one or more of such joint contractors or executors or administrators, shall neverthele:s be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.”
It will be observed, that in the section proposed, we have retained the substance of the English act, though we have endeavored to condense its phraseology, without altering its spirit.
Before passing from this chapter, it is proposed to call the attention of the legislature to some provisions in the corresponding article of the Revised Statutes, which we have deemed it right to omit; and which are, therefore, brought within the repeal, contained in section 66. They consist of three sections; the first two of which provide as follows:
“If any action shall have been commenced within the times respectively prescribed in the three first articles of this title, and the defendant in such suit die before judgment; and if the right of action be such as survives against the representatives of the defendant, the plaintiff may commence a new action against the heirs, executors, or administrators of such defendant, as the case may require, within one year after such death; or if no executors or administrators be appointed within that time, then within one year after letters testamentary, or of administration, shall have been granted to them.” (2 R. S. 3d ed. 396, sec. 34.)
“When an action commenced within the time prescribed by law, shall abate by reason of the death of the plaintiff, if the right of action survive to his representatives, his executor or administrator may, within one year after such death, commence a new action, if the cause of action would otherwise survive ; and if any action so commenced by an executor or administrator, shall abate by the death of the plaintiff, a new action may be commenced by the administrator of the same estate, at any time within one year after such abatement.” (Ibid. sec 35.)
As a substitute for these, and other statutory provisions, and for the practice generally, in reference to abatement of actions by the death of parties, it is proposed by section 101, (p. 127,) to authorize the court on motion, to continue the original suit, where the cause of action survives.
The last provision of the Revised Statutes, above referred to as omitted, enacts that, “whenever the commencement of any suit shall be prevented by reason of any privilege of any member of either house of the legislature of this state, or of any member of either house of the congress of the United States the time during which the same shall have been so prevented, shall not be deemed any portion of the time limited for the commencement of any suit for the recovery of any debt, demand, or damages only.” (2 R. S. 3d ed. 397, sec. 37.)
When this provision was first introduced into the statutes of this state, there was no other mode of commencing, what is now known as a personal action, than by a writ of capias ad respondendum. Upon this writ, the defendent was liable, in nearly all cases, to be arrested and held to bail ; and in most cases, this could be done without a judicial order, at the mere caprice of the plaintiff. It was very proper, therefore, while this practice continued, to protect members of congress and of the state legislature, from a proceeding, injurious alike to themselves, and to the interests of their constituents. But, under a system which proposes, as this does, that every action shall be commenced by a summons, the right of privilege from arrest has nothing to do with the right to commence the action, and cannot, of course, enter into the question of limitation. The privilege of the persons here described, from arrest on the process provided for that purpose by this act, is in no degree impaired by the omission of the existing provision.
Of the Parties to Civil Actions.
SECTION 91. Action to be in the name of the real party in interest.
92. Assignment of a thing in action not to prejudice a desence.
to a complete determination of the controversity.
The rules respecting parties in the courts of law, differ from those in the courts of equity. The blending of the jurisdictions makes it necessary to revise these rules, to some extent. In doing so, we have had a three-fold purpose in view : first, to do away with the artificial distinctions existing in the courts of law, and to require the real party in interest to appear in court as such: second, to require the presence of such parties as are necessary to make an end of the controversy: and third, to allow otherwise great latitude in respect to the number of parlies who may be brought in.
The common law prohibited the assignment of a thing in action. It did so for an artificial reason, which is not applicable to our circumstances. The courts of equity, on the other hand, allowed and protected the assignment. The con. sequence was, that the assignee could bring a suit in equity upon the demand assigned, while the law looked upon him as having no rights in regard to it, and forbade his appearance in its courts.
Finally, with the increase of commerce, and the spread of more liberal opinions, the common law courts began to look upon the assignee with some forbearance, and winked at the assignment, so far as to deny the right of the assignor to release the debt; but they still refused to recognize the right of the assignee to sue. So this is the condition of the parties; if the assignee sues at law, he is turned out of court, and if the assignor sues in equity, he is turned out also. If at this moment, any member of the legislature, to whom a bond and mortgage had been assigned, were to go into the supreme court and sue upon the bond, he would have to sue in the name of the person who made the assignment, however much distrusted, or lose his case ; but if he were to sue on the mortgage, for the foreclosure, he would have to sue in his own name, or he would not be heard. And yet it is the same judge who sits in the two cases.
The true rule undoubtedly is, that which prevails in the courts of equity, that he who has the right, is the person to pursue the remedy. We have adopted that rule. It will be found in the form in which we have stated it, in Field v. Maghee, 5 Paige, 539. Rogers v. Traders' Ins. Co., 6 Paiges, 698; and Miles v. Hoag, 7 Paige, 21.
The courts of law generally administer justice betweee those parties only who stand in the same relation to achn other; while courts of equity bring before them various parties, standing in different relations, that the whole controversy may be settled, if possible, in one suit, and others avoided. This reasonable and just rule, we would adopt for all artions. It is for the interest neither of the suitor nor of the state, that there should be several suits to settle one controversy, so long as one will do it as well. We have had no hesitation in providing therefore, as we have done by section 102, that when a complete determination of the controversy cannot be had without the presence of parties not at first brought before the court, the court may direct them to be made parties.
Having prescribed these rules, we lare intended to leave uitors I, much at liberty to choose whom to make defend