1 cipal handed money to the surety, and requested him to pay it to the creditor; the surety paid it, and had the payment indorsed. It was held that the surety could not claim that he acted in the transaction merely as an agent, and therefore that the case was taken out of the statute as to both. The assent of a surety to a part payment by the - principal may be inferred. Thus, where a debtor and his surety go to the creditor together, for the express purpose of making a payment, and for that alone, and both apparently co-operate in the transaction, though the debtor alone handles the money, the creditor has a right to consider it a joint payment binding the surety under the statute of limitations, unless the surety in some manner notifies him that it is not so.2 And it seems that where money is paid by a surety in the presence of the principal, and the latter does not dissent thereto, or say anything, his silence may be treated as an acquiescence in such payment, so as to remove the statute bar as to both. If one co-contractor procures a payment to be made by his co-debtor, it is sufficient to bind him.* But even though the money is paid by one co-contractor for another, with the funds of the other, and as his agent, and he so informs the creditor at the time, he is not bound thereby; and such payment does not remove the statute bar as to him. But the question as to whether there has been an assent by one co-debtor to a payment made upon the joint debt by another is a mixed question of law and fact, to be determined in view of all the circumstances attending the transaction. proved by oral admissions of the debtor, and such payment may be made by an agent, and the authority of the agent may be proved by parol evidence. The case of Harper v. Fairley, 53 N. Y. 442, depended on the question whether the maker of the note had knowledge of the payment made upon it by another, and assented to it or authorized it, and is not in conflict with the above cases in any respect. 1 In Haight v. Avery, ante, a father became surety for his son. The son paid the interest, but, as was insisted by the plaintiff, by direction of the father. The father set up the statute. The judge charged the jury that, in order to charge the father by such payments, it was not necessary that they should be shown to have been made by himself, but that it was sufficient if they were made by the son by his direction. Held, sufficient. 2 Mainzinger v. Mohr, 41 Mich. 685. The admissions of one joint debtor are not evidence against the others. Rogers v. Anderson, 40 Mich. 290. 3 Whipple v. Stevens, 22 N. H. 219. But see Quimby v. Putnam, 28 Me. 419, where it was held that a payment made by one of two joint debtors, in the presence of the other, will not afford evidence of a new promise made by both. See also, to the same effect, Patch v. King, 29 Mo. 448. Payments authoritatively made by the treasurer of a partnership or joint-stock company, from the partnership funds, and by him indorsed on a note executed by the partnership, take the note out of the stat CHAPTER XXVI. JUDICIAL PROCESS. SEC. 289. When Action is treated as com- 290. Statutory Provisions relating to. ers. Pleading, Set-off, &c. SEC. 293. Mistaken Remedy, &c. SEC. 289. When Action is treated as commenced. Formerly the question as to when an action could be said to have been commenced, so as to save a debt from the operation of the statutes, was one of great importance, and over which there was some confusion and conflict of doctrine. But the general rule adopted was, and is, except where otherwise provided by statute, that the statute is suspended from the time of the suing out of the writ, .and its bona fide delivery to a proper officer for service.1 The writ may be sent to the sheriff for service by mail, and if it fails to reach him without any fault on the part of the plaintiff, that is, if it was seasonably deposited by him or some person for him in the post-office, and except for unusual delay or accident in the transmission of the mail it should have seasonably reached the sheriff, the plaintiff will not be prejudiced." SEC. 290. Statutory Provisions relating to. In many of the States provision is now made in the statute as to what shall be deemed the commencement of an action. Thus, in Maine, "the time when a writ is actually made with an intention of service" is the commencement of the suit; and this is practically the provision in Alabama, whether the writ is executed or not, if it is continued by an alias, or recommenced at the next term of the court. In Kentucky, the action is deemed to 1 Beckman v. Satterlee, 5 Cow. (N. Y.) 519; Evans v. Gallaway, 20 Ind. 479; Lowrey v. Lawrence, 1 Cai. (N. Y.) 79; Kenney v. Lee, 10 Tex. 155; Hail v. Spencer, 1 R. I. 17; Cheetham v. Lewis, 3 Johns. (N. Y.) 42; Burdick v. Green, 18 id. 14; Jackson v. Brooks, 14 Wend. (N. Y.) 649; Sharp v. McGuire, 19 Cal. 577; Pemental v. San Francisco, 21 id. 351; State v. Groome, 10 Iowa, 308. 2 Jewett v. Greene, 8 Me. 447. In some of the States express provision is made for saving the rights of parties where the writ fails of proper service by accident. See next note. 8 In Maine, it is also provided that "when a writ fails of a sufficient service or return, by unavoidable accident, or default or negligence of the officer to whom it was delivered or directed," &c., a new action may be commenced within six months thereafter. In Vermont, a similar provision exists, except that one year is given. In Connecticut, a provision similar to that in Vermont exists. So also in Massachusetts, Colorado, Iowa, and some other States. be commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction in the action. In North Carolina, the action is deemed to be commenced as to each defendant when the summons is issued against him. In Ohio, at the date of the summons which is actually served on the defendant, and when service by publication is proper, from the date of the first publication; so also in Wyoming. In California, when the complaint is filed. So in Arizona, Utah, Idaho, and practically in New Mexico. In Oregon, when the complaint is filed and served on one or more of the defendants. In Wisconsin, when the summons is served on one of the defendants. In Nevada, when the complaint is filed in the proper court, and a summons issued and placed in the hands of the sheriff of the county or other person authorized to serve the same. In Tennessee, the suing out of a summons, whether it is executed or not, if it is continued by the issuance of an alias process from term to term, or recommenced within one year after the failure to execute. In Florida, when the summons is issued to the proper officer or filed in the proper office. In New York, South Carolina, and Dakota, when the summons is served on one or more of the defendants.1 In Connecticut, the action is deemed to be commenced from the date of the service of the writ.2 In Vermont, the making of a writ, or the issue of a summons and order of notice, is the commencement of an action; and such, also, is the rule in Massachusetts; and the filling up and dating of a writ before the statute has run has been held sufficient to save the statute.* 5 1 In New York, provision is made for saving the plaintiff's rights when he attempts to commence an action. Thus, "an attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more co-defendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps, or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the deliv ery of the summons to an officer must be followed within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant sought to be charged, or by the first publication of the summons, as against that defendant, pursuant to an order for service upon him in that manner. The last section, excluding the provision requiring a publication or service of the summons within sixty days, applies to an attempt to commence an action, in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due dili gence." And a provision similar to that in sec. 399 exists in South Carolina and Dakota. In Pennsylvania, the issue of a summons suspends the statute if an alias summons is issued within six years; and it is not necessary to enter continuances to save the bar; 2 and if the proper persons are sued, the statute is suspended, notwithstanding the firm name is erroneously given, and the process is subsequently amended. But the issue of a summons which is not served will not save the statute, unless an alias is taken out and served within six years. In Pennsylvania, the practice is to issue the original writ before the statute has run, and to continue it by an alias, plus, and pluries, even after the intervention of more than one term; 5 and as the writ which commences the action states the ground thereof, it is sufficient to set it forth without the continuances. In South Carolina, however, an alias must be issued within one year from the time the original issued, and must also be regularly delivered to the sheriff, or it does not operate as a continuance of the original writ. In New York, under the old practice, the issuing of a capias to any county would save the statute, even though the plaintiff directed the sheriff to return it non est; but it was required to be kept on foot by continuances, which could be entered at any time. The fact that the ad damnum is laid at a different sum from that in the original process, or that the venue was laid in a different county, will not defeat its effect in suspending the statute, if the action is transitory, and it is averred that both actions were predicated on the same claim, nor even that the actions are different in form, if both are for the same cause." If the action is commenced in season, the statute is saved without any reference to the question whether the plaintiff used any diligence in its prosecution. 12, 8 SEC. 291. Date of Writ not conclusive. The date of the writ is not conclusive, but is a fact which may be contested, and the rule may be said to be that it is not enough that the writ bears date before the expiration of the statutory period, but both the bona fide of the plaintiff in taking it out and the exact time may be averred and shown, notwithstanding the teste.18 The date of the writ is only prima facie evidence of the time of its issue; 14 and whenever the exact time of its 411. 1 McClurg v. Fryer, 15 Penn. St. 293. 2 Schlosser v. Lesher, 1 Dall. (Penn.) 8 Nichols v. Fox, 2 W. N. C. 196. Currier's Estate, 28 Penn. St. 261. 5 Pennock v. Hart, 8 S. & R. (Penn.) 369. 411. 10 Baskins v. Wilson, 6 Cow. (N. Y.) 471. 11 Young v. Davis, 30 Ala. 213. 12 King v. State Bank, 13 Ark. 269. But see Clarke v. Kellar, 3 Bush (Ky.), 223, where a different doctrine was held. 13 6 Comyn's Digest, 539; Lester v. JenSchlosser v. Lesher, 1 Dall. (Penn.) kins, 8 B. & C. 339; Allen v. Portland Stage Co., 8 Me. 207; Chauncey v. Rutter, 7 State Bank v. Baker, 3 McCord 3 Neb. 313; Henderson v. Baker, 2 Burr. (S. C.), 281. 649. 950; Henway v. Murray, 1 Vent. 28; Mor 8 Jackson v. Brooks, 14 Wend. (N. Y.) ris v. Pugh, 3 Burr. 1241. 14 Gardner v. Webber, 17 Pick. (Mass.) 9 Beckman v. Satterlee, 5 Cow. (N. Y.) 407; Society, &c. v. Whitcomb, 2 N. H. 519. 227; Johnson v. Farwell, 7 Me. 370. issue, even to the hour, becomes necessary, the defendant may, if he can, show it, even though it contradicts the teste of the writ. "It would be most extraordinary and inequitable," said LORD MANSFIELD,1 66 not to allow the presumption, that the plaintiff commenced his process seasonably, to be rebutted by the defendant, by showing that in real truth the time was run before he took any step." SEC. 292. Filing Claim before Commissioners. Pleading, Set-off, &c – Filing a claim with the commissioners of a deceased insolvent estate has been held equivalent to commencing an action. And in New York the entry of an order to refer a claim against the estate of a decedent, is held to be the commencement of an action, within the meaning of the statute. The filing of a claim in set-off operates as a suspension of the statute as to it, so that, even though the plaintiff's action fails, and the set-off cannot be enforced therein, the defendant may, by a suit brought within a reasonable time thereafter, preserve his rights.' 5 SEC. 293. Mistaken Remedy, &c. - If the plaintiff mistakes his remedy, in the absence of any statutory provision, saving his rights, and during the pendency of the action the statute runs upon his claim, his remedy is barred; and the same rule prevails where, from any cause, the plaintiff becomes nonsuit, or the action abates or is dismissed, or judgment therein is reversed or set aside, the statute bars another action brought for the same claim, unless, as is the case in several of the States, provision is made to save the remedy." SEC. 294. Amendment of Process. An amendment of the process which does not change the remedy does not affect the statutory suspension; but where a party obtains leave to amend his summons and complaint after the statute has fully run, and does so by bringing in new parties defendant, the parties so brought in may set up the statute in bar of the action as to them; and it would seem that the bringing in of such new parties would be so far equivalent to bringing a new action, that such new defendants may rely upon the statute as a defence, especially where the new complaint does not advert to the former proceedings so as to connect the former with the latter." A 9 10 1 Henderson v. Baker, ante. 2 Guild v. Hale, 15 Mass. 455. 8 8 Hultslander v. Thompson, 5 Hun (N. Y.), 348. 8 Newman v. Marvin, 12 Hun (N. Y.), 236. 9 McMahon v. Allen, Abb. (N. Y.) 89. See also Magaw v. Clark, 6 Watts 4 Hunt v. Spaulding, 18 Pick. (Mass.) (Penn.), 528; Brown v. Goalsby, 34 Miss. 521. See chapter on SET-OFF. 5 Todd's Appeal, 24 Penn. St. 429. 6 Harris v. Dennis, 1 S. & R. (Penn.) 236. 7 Williamson v. Wardlaw, 46 Ga. 126; Memphis, &c. R. R. Co. v. Orr, 52 Miss. 541. 437. In Bradford v. Andrews, 20 Ohio St. 208, it was held that a new defendant brought in, was in as of the date of the original process, although the statute had run in his favor before he was brought in. 10 See Shaw v. Cook, 12 Hun (N. Y.), 173; Sands v. Burt, 1 Abb. L. J. 124. 11 Sands v. Burt, ante. |