# Updike v. Broeck > Supreme Court of New Jersey · November 15, 1866 · 32 N.J.L. 105 URL: https://www.frixlaw.com/law-library/cases/8058359 ## Case - **Full name:** JEREMIAH UPDIKE, EXECUTORS OF JOHN D. W. TEN BROECK v. RALPH V. D. TEN BROECK - **Court:** Supreme Court of New Jersey - **Decided:** November 15, 1866 - **Citations:** 32 N.J.L. 105 - **Precedential status:** Published - **Opinion:** Dissent by Elmer - **Judges:** Bedle, Elmer - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8058359 ## Opinion text Elmer, J. (dissenting). Upon the trial of this cause, the court was asked to non-suit the plaintiff, for the reason that he did not commence his suit within three months from the time of being served with notice that his claim was disputed, as required by the second section of the “ act for the relief of legatees and next of kin, in the recovery of legacies and distributive shares,” approved February 28th, 1849, (Nix. Dig. 281.) * A non-suit having been denied, and a verdict rendered to the plaintiff, bills of exceptions were taken to this as well as other rulings of the court, and the case has been argued before us upon these various exceptions. I shall confine my opinion to the question which lies at the foundation of this action: whether, upon the undisputed facts disclosed by the evidence, the creditor brought his suit in time. For the plaintiff, it is insisted that his suit was brought on the 25th of June, when the attorney says he issued the summons, by sealing it, properly drawn, and dated of that day, and leaving it on his table, which was in due time; while for the defendants, it is insisted that the suit was not brought until the writ was sent to the sheriff, which was some two months after the expiration of three months from the notice. It appears by the case of Foster v. Bonner, Cowp. 454, *122 and other cases, cited in the opinion of the court, that in England, for some purposes, the exhibiting of the bill is considered as the commencement of the suit; but that to avoid the statute, of limitations, the true time of issuing the writ may be shown, and the action will be held to be then commenced. In the case of Whitaker v. Turnbull, 3 Harr. 172 , it was held by this court, that a suit was actually commenced as soon as the writ was sealed and issued out of the office, in good faith, for the purpose of being served and proceeded on, and that purpose is not afterwards abandoned. The writ, in that case, was presented to the defendant, and he was requested to sign his appearance to the same, and shortly afterwards defendant called, and said his attorney would give an appearance for him, which he did on the same day. The suit was held to have been commenced on the day the writ was issued and shown to the defendant. In the case before us, the summons was not issued out of the clerk’s office, but, in pursuance of the convenient practice in this state, the attorney, by permission of the clerk, signed his name, and affixed the seal, in his own office. Having-done this, he left it on his table, where it remained until handed to the sheriff, about five months after the giving of the notice. Had it been actually put in motion to be served, I should have no difficulty in holding that the suit was thereby commenced. But no case in this state, or elsewhere, has gone so far as to treat the mere drawing up, signing, and sealing of a writ in the attorney’s office, as of itself the bringing of a suit, although the attorney himself so intended. In the case of Whitaker v. Turnbull , the writ was not actually sent to the sheriff to be served, but that was done with it, as the Chief Justice remarks, “which was more civil to the defendant, and more effectually apprised him that a suit had been commenced. The writ and the evidence of the plaintiff’s demand were both shown to him, and he was distinctly informed of the plaintiff’s intention to proceed in the action. In fact the writ was on its way to *123 the sheriff, by the hand of the attorney, and would have been delivered to him, if the defendant had not stipulated to do that which was equivalent to a service of it by the sheriff” Nothing of the kind was done in this case. No use was made of the writ. It was merely prepared for use; was never shown to the defendants or their attorney; they were not informed that it had been sealed, nor was it withheld at their request. There were several conversations about an arbitration; but it is not alleged that the defendants or their attorney ever agreed to one, or that they induced the plaintiff’s attorney to delay the writ. His mistake was, in supposing that what he did was an actual bringing of a suit, within the meaning of the statute. I cannot so consider it. So to hold would be, in my opinion, to introduce a highly dangerous practice, sanctioned by no precedent, and by no sound principle. The first section of the act of 1855 (Nix. Dig. 664) * does not appear to me in the least to affect this question. The date of the writ is made only prima facie evidence that it was issued at that time, but it is expressly enacted that this date may be disproved, as in this ease I think it has been. It has been insisted for the plaintiff, that the plea by which this objection to the suit was made, is so defective as to be bad in substance, so that the court was justified in rejecting it. No such ground as this appears to have been taken at the trial, and if it had been, I think it is not tenable. The plea sets forth that on a day named, an order was made by the Orphans Court of the county of Somerset, according to the statute, directing creditors to bring in their claims within nine months, and that the plaintiff presented to one of the defendants, the acting executor, the claim for which the action is brought, and that the executor disputed the same, and thereupon, on the second day of April, 1859, gave notice in writing to the plaintiff that said claim was ■disputed, and that said suit was not commenced within three *124 months from the time of giving such notice, and that after-wards the said Orphans Court ordered and decreed that all creditors who had not presented their claims, as required by said order, be barred, &o. To this plea the plaintiff replied that his suit was commenced within three months from the time of the said notice, concluding to the country. If the plea may be considered technically defective, in not showing the jurisdiction of the Orphans Court of the eounty of Somerset, to make the orders set forth, or in the absence of any other formality, it might have been amended at the trial. But the replication, by denying and putting in issue-only the fact that the suit was not commenced in time, admitted all the other allegations of the plea, and by these it appears, not only that the Orphans Court of the county of Somerset made the orders stated, but that both parties acted under them. The plea is sufficiently intelligible, and good in substance, and it plainly appearing that the action was, in fact, commenced too late, I think the Circuit Court erred in, refusing to non-suit the plaintiff, and that the judgment must be reversed. Cited in James v. Van Horn, 10 Vroom 360 ; Prickett v. Prickett's Administrators, 5 C. E. Gr. 480; Gardner’s Administrators v. Schooley, 10 C. E. Gr. 154. Rev., 764. Rev., p. 855, § 43. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8058359. Public record. Not legal advice.