11 Johns. 472 | N.Y. Sup. Ct. | 1814
delivered the opinion of the court. It was incumbent on the plaintiff to prove, 1. The recognisance; and, 2. That he commenced a suit for the trespass, before the next term of the common pleas.
Whether merely issuing the writ and delivering it to the sheriff to be served, without actual service, and without an alias and pluries capias, can be deemed a commencement of the suit, in the sense of this recognisance; and whether the recognisance ought not to be taken to the people, are questions which need mot be decided in this case.
. It was indispensably necessary for the plaintiff to prove at least the delivery of the writ to the proper officer, with a bona fide intention of having it served; and if the defendant could show that it was a, feigned proceeding, without intention on the part of the plaintiff to have it served, or could show ground to presume that the plaintiff had instructed the officer not to serve the writ, it was pertinent evidence; because it went to disprove « the commencement of the suit,” in the largest sense of the phrase.
If the plaintiff could have succeeded in proving the suit com» -mienced, he would have recovered 50 dollars of the surety,
The counsel have argued the case as though the evidence offered by the defendant was intended to operate as a direct release or discharge of the recognisance, whereas, it goes to contradict an essential averment in the declaration; to wit, the commencement of the suit against Reynolds. In the latter view it was proper evidence; and the judgment below ought to be affirmed.
Judgment affirmed.
