McClurg v. Fryer & Anderson

The opinion of the court was delivered by Coulter, J. Two errors are assigned to the charge of the court below, neither of which are sufficient to overset the judgment. The court were, as to both matters complained of, decidedly right. The law requires no man in the pursuit of his rights to do a vain and futile thing, useful to nobody, and hurtful to himself by the needless expense and trouble it would impose. The court was [295] therefore right in instructing the jury that if, at the time of the maturity of the guaranty, Mrs. McKinley was so utterly insolvent as not to make it worth while to sue her, a suit against her w.as unnecessary : that would be unnecessary cost and trouble on a man for nothing. Insolvency, hopeless or utter insolvency, may be proved, like every thing else depending on facts, by parol as well as by record: and we cannot hold that it is necessary to sue a beggar. The other errors assigned are of as little validity. The institution of the alias summons lifted away or tolled the bar of the statute of limitations. The alias suit was instituted within six years of the first, that is to say, about five years after the first summons. The first summons was not served, the second was. The second suit was for the same cause, was entitled an alias, and so marked on the record; and this, as it has been held, is so connected and linked with the first as to be a continuation or reiteration of the original, and so indissolubly connected as to be one; and that, so far as the statute is concerned, it stops running from the institution of the first process. We will not say that the demand might not be barred, if the plaintiff delayed six years before issuing his alias. That will be a question not presented here. Judgment affirmed.