William Lowry v. Andrew Lawrence, 1 Cole. & Cai. Cas. 170

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 declaration to have 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 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 ac crued. 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 bi'l or declaration is to be regarded for every essential purpose as the commencement of a suit, Vid. Cowp. 454—but in Carpenter v.

Butterfield, decided by the 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 plaintiff’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 favour of the defendant, is not founded on British authorities, but entirely on a former decision of our own. See Crygiers v. Long, ante, p. 106.