Lowry against Lawrence

Lowry against Lawrence. The suing out the writ is the commencement of the suit, and eayse of action must be antecedent; if'it appear otherwise on the face of the pleadings it is fatal on special demurrer. On demurrer. The memorandum was: “ Be it remembered, that heretofore, to wit, on the third Tuesday of July, in July term, in the year of our Lord one thousand eight hundred and one, &c., came William Lowry, and brought into the said court, then there, his certain bill,” &c. The declaration was on a bill of exchange made in 1797’, presented for acceptance on the first of October, 1801, and refused, of which notice was given to the defendant, who, on the 11th of October, promised. To this the defendant demurred, and showed for cause, that, although the said declaration is entitled of the term of July, in the year of our Lord one thousand eight hundred and one, yet the said several promises and undertakings in the said declaration mentioned, are therein stated to have been made on the eleventh day of October, in the year last aforesaid, which is subsequent to the time of the exhibiting the declaration of the said William 'against the said Andrew, and for that it appears by the said decía ration that the pretended causes of action therein specified had not, nor had either Of them, accrued to the said William at the time of the exhibiting his said bill in manner aforesaid. Troup, for the defendant, insisted that, by the [*70] practice of this court, the suing out the writ was *the commencement of the action; and if so, the declaration showed, on the face of it, no cause of action when the suit was commenced. Ogden, for the plaintiff. It is contended on the part of the defendant that nothing appears on this record to warrant a judgment for the plaintiff. By the course of the court the filing of the bill is the' commencement of the action in a legal sense. The latitat is considered only as process. The action is not deemed to be commenced until the bill is filed, though the real time of suing out the latitat is allowed to be shown, where it becomes material; as to prevent the running of the statute of limitations, &c. If such a necessity existed in this case, the actual time of suing out the first process might have been shown by plea. But where it does not exist the fiction of law will be preserved, and especially so when it is in furtherance of justice. On this occasion, the true question, therefore, is, when, in a legal or technical sense, was this action commenced? This can only be ascertained by showing the time of filing the bill. The time of filing the bill may be examined into to show the time of commencing the action. It ought to have been shown by pleading in this case. Hot being shown, the court are at liberty to presume that it was after the cause of action accrued. The caption of the declaration is matter of fiction, and not conclusive upon either party. If it be conclusive, all actions by bill of privilege; actions against attorneys of the court; actions against absent or absconding debtors, giving security to appear to any declaration which may be filed by the petitioning creditor, would be defeated in all cases in which the cause of action accrued, during the vacation in which the declaration is filed. Because, in all these cases the declaration is entitled of the preceding term, and must necessarily be stated in the memorandum to have been brought ii ito court of that term. This doctrine involves no hardship ypon the defendant; because, if in the first instance process be issued before the cause of action accrued, a judge will discharge on common bail. So, if the bill be filed before • cause of action accrued, the actual time of filing it may be shown and pleaded in abatement or in bar. In this case, it do^s not necessarily follow that the cause of action did not accrue before the commencement *of the [*71] action, and the time of that commencement not being shown, the court are at liberty, and ought, to presume it to have accrued afterwards. In addition to this general reasoning on this subject, it may be observed that, in this instance, the real cause of action is stated to have accrued in 1797 ; being the date of the bill of exchange and long prior to the issuing of process. It is the assumption, founded on that undertaking, which is stated to have been made in October, .1801; and the time of the promise being wholly immaterial, the court will, in this circumstance, see an additional motive for adopting the principle contended for by the plaintiff. Johnson et al. v. Smith, 2 Burr. 950. See Lord Mansfield’s opinion 961. Foster v. Bonner, Cowper, 464. [MAJORITY — Per Curiam. Livingston, J.] Per Curiam. This case comes before the court on demurrer. It was an action of assumpsit, and the declaration captioned of July term, 1801. The time laid in the declaration, at which the cause of action arose, is on the 11th day of October, 1801. To this there is a special demurrer, alleging for cause, that the action appears from the decía ration to have been commenced before cause of action arose. It is, .we take it, well settled that if the plaintiff at the commencement of his suit had no cause of action, a subsequent right would not maintain his action. And it has been settled in this court, in the case of Carpenter v. Butterfield, that as to every material purpose, the issuing the writ was the commencement of the suit; so that a note purchased by the defendant after that time, could not be set off against the plaintiff’s demand. The declaration must be captioned of the term when the writ is returned served. This point is settled in the case of Smith v. Muller, and it is there also determined that the plaintiff cannot recover any demand after the term when, the writ is returnable, though before the declaration is 'actually filed. Justice Buller there says, according to the ancient practice the declaration was actually delivered the same term the writ was returned, and it was only in ease of the plaintiff that the time of actual delivery was enlarged, but still it must be considered as delivered nunc pro tune. Upon the principles of these authorities, therefore, it must appear from -the face of the declaration in this cause, and the court must necessarily intend the facts, that the writ was returned in July term, 1801, and of course the action, both in fact, and technically speaking, commenced previous to that *time. But the plaintiff alleges [*72] his cause of action to have arisen on the 11th of October thereafter. We think, therefore, it appears upon the face of the record that the action was commenced before the right of action accrued. The time of actually filing the declaration cannot, as contended by the plaintiff’s counsel, be considered the commencement of the suit: if, therefore, the defendant, by plea, had put the fact in issue, it would have been an immaterial fact; all the material facts appear by the plaintiff’s own showing. In the case of Ward v. Honeywood, the judgment was reversed on writ of error, on the ground that it appeared on the face of the record, that there was no cause of action when the suit was commenced. If this would be error after judgment, advantage may certainly be taken of it by demurrer. We are, therefore, of opinion, that judgment ought to be for the defendant. Livingston, J. In England it is settled, that the filing of a bill or declaration is to be regarded for every essential purpose as the conimencement of a suit. Cowp. 454. But in Carpenter and Butterfield, decided by this court, a different rule was adopted. The issuing of a writ was there considered as the beginning of an action, so much so that the defendant was not permitted to set off against the plainiff’s demand, a note which he had obtained for valuable consideration between the sealing of the process and the arrest. This rule, to operate fairly, must be mutual; if an action begins by issuing a writ so as to deprive the defendant of a set-off in the case mentioned, neither ought the plaintiffs to recover a demand not then due. My judgment, therefore, in favor of the defendant is not founded on British authorities, but entirely on a former da sion of aux own., Demurre vllowed. а) S. P. Bird and others v. Caritat, 1 Johns. Rep. 342, and not cured by a verdict Cheetham v. Lewis, 3 Johns. Rep. 42. See Crygier v. Long, Cole. Cas. 103, that if defendant put in bail, and plead in chiefj he cannot, after verdict, take advantage of the writ’s being sued out before cause of action arose. If the arrest be before debt due, application ought to be to a judge, or the court, without putting in bail 3 D. & E. 624. Doug. 61, that ease was on. marshalsea process, where the proceedings are by plaint; and in an inferior court the plaint is as an original. Savage v. Knight, Leon 302. See the observations of Ashhurst, J., in Doug. 62. The principle of this decision is extended to justices’ courts, in r ' v*?t the summons is held to be the commencement of the suit. Boyce v. Ma 3 Caines’ Rep. 133. See the New York Code of Procedure, sec. 99.