Crygiers v. Long

Crygiers v. Long. IN this case a verdict was entered for the plaintiff^ subject to the opinion of the court on the following facts : On the 20th of August, 1799, the defendant was arrested by virtue of a copias tested of July term, and returnable at October; but the note on which the writ issued did not fall due until the 21st, and was not payable till the 24th of August. Hawes, for the defendant, contended that the arrest being made before the note became due, although on process returnable after, was void. He cited 2 Burr, 962. 1 Wils. 147. Evertson insisted, that nothing could be considered as the commencement of a suit, but the filing of the bill: and that if the plaintiff shows a cause of action before exhibiting the bill, it is sufficient. He relied upon Cowp. 454. 7 Durn. & East, 4. [MAJORITY — Per Curiam.] Per Curiam. If an arrest be made before the debt is due, the defendant should apply in the first instance to the court, or to a judge at his chambers, and not put in bail and plead. Here the defendant having omitted to make such application, and having filed bail and pleaded in chief, is too late.