18 Johns. 14 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court. The Case states, that “ from the caption of the declaration, and the memorandum of the nisi prius record, it appeared that
-At the trial a question was raised, whether the plaintiff had a right to elect his count, on which he would apply the note declared on; and it was properly ruled that he might.
No attempt was made to prove that the discharge, under ' the insolvent act, was fraudulent; nor was there any evidence offered in relation to that discharge.
The discharge being formally pleaded by the defendant^ and the plaintiff having replied fraud, the discharge was admitted by the pleadings. But as it appears on the face of the pleadings, that the contracts declared on were made "< prior to the insolvent act of 1811, under the late decision - of the Supreme Court of the United States, the plaintiff' might have successfully demurred to that plea ; and although ’ he has not done so, and has chosen to go to trial upon the ; issue of fact, that is, fraud or no fraud in the discharge, and that issue must be considered as found against him; yet as the allegation in the plea, if true, Contains no ground 4-of defence, we should be justified in rendering judgment for the plaintiff on that point, veredicto non obstante.
But we are of opinion, that the defence was complete, under the plea of the statute of limitations. The note was ‘ due, and the whole cause of action arose, on the lst day of August, 1810. There is no doubt as to the rule, that the.' issuing of the writ is the commencement of the suit, in all cases where the time is material. The question on this evidence is, whether the plaintiff has proved that the capias was sued out before the six years expired ?
We do not think that it is indispensably necessary in such cases to prove an actual delivery of the writ to the sheriff; provided it be shown, that it was actually made out and sent to the sheriff, or his deputy, by mail, or otherwise, with a bona fide and absolute intention of having it served;But such intention must be positive and unequivocal.
The evidence is not satisfactory on that point. The writ is proved to have been made out by the attorney, and delivered to the plaintiff, before the note tvas reassigned to
Upon this view of the subject, it is immaterial which count the plaintiff elected to claim under; for if he relies on the original ground of indebtedness, as for goods sold, &c. the evidence is equally strong to show, that the writ was not issued with an absolute and unconditional intention of having it served, until after the statute had run six years.
Besides, the original agreement, upon the dissolution of the partnership between the plaintiff and defendant, which
A verdict was taken for the plaintiff, subject to the opinion of the Court, upon all the questions of law and fact.
We are of opinion that the defendant is entitled to judgment, pursuant to the stipulation hr the case.
Judgment for the defendant* "