Opinion
Decided June, 1885.
A Suit in equity is not commenced until the bill is filed.
BILL IN EQUITY, to recover money verbally promised in support of a baseball club. The defendant in his answer alleges that there is no equity in the bill, that the plaintiff has an adequate remedy at law, and sets up the statute of limitations.
In 1877 the plaintiff was the manager of a baseball club in Manchester. He, the defendant, and three others, verbally agreed to pay each one sixth part of the excess of the expenses over the receipts of the club. The plaintiff, as manager, advanced the expenses, and at the end of the season, in the fall of 1877, demanded payment of the defendant of his share of the excess over the receipts, which the defendant refused to pay. About the first of June, 1883, the plaintiff drew the bill and sent it to the clerk, who notified him that by the rule it could not be filed and entered until the entry fee was paid. February 12, 1881, the necessary fees having been provided, the bill was filed and an order of notice issued, which was served upon the defendant February 28, 1884. The court dismissed the bill, and the plaintiff excepted.
J. W. Fellows, for the plaintiff.
Burnham Brown, for the defendant.
An action at law is in general regarded as commenced, so as to avoid the statute of limitations, when the writ is completed with the purpose of making immediate service. But when there is no intention to have it served, or it cannot be served until some further act is done, the action is not deemed to be commenced until such act is performed. Robinson v. Burleigh, 5 N.H. 225; Graves v. Ticknor, 6 N.H. 537; Hardy v. Corlis, 21 N.H. 356; Mason v. Cheney, 47 N.H. 24; Brewster v. Brewster, 52 N.H. 60. The same rule is applicable to suits in equity. Leach v. Noyes, 45 N.H. 364. A bill in equity must be filed in the clerk's office, and an order of notice obtained, before it can be served upon the defendant. Rules 11, 13. The date of the filing is therefore the earliest time which can be taken as the commencement of the suit.
The plaintiff's action is barred by the statute of limitations. This result makes it unnecessary to consider other questions raised by the case.
Exceptions overruled.
ALLEN, J., did not sit: the others concurred.