3 Denio 12 | N.Y. Sup. Ct. | 1846
As no time of payment is mentioned in the note, it was payable immediately. (See Wenman v. Mohawk Ins. Co. 13 Wend. 267.) The remaining questions are, 1. When was the suit commenced? and 2. When did the six years expire?
Two questions are made on the commencement of the suit. Upon process by summons, the suit is considered as commenced, so as to save the statute, when the process is delivered to the constable. (2 R. S. 227, § 12.) But it is said, that there was no legal evidence before the justice that the first summons was delivered to the constable before the 15th of February; the day
Facts of which the justice may take judicial notice for the purpose of deciding the cause, he may return in answer to a certiorari. Otherwise a judgment might be reversed, although it was rendered upon sufficient grounds;
It is further urged that the suit commenced by the first summons was discontinued, because the plaintiff did not take a warrant, instead of a second summons. (2 R. S. 228, § 18.) But the issuing of a warrant was forbidden by the non-imprisonment act. (Stat. 1831, p. 403, § 30, 31.) The suit commenced by the first summons was well continued by the second summons, which was issued on the day of the return of the first.
The case then comes to this: the note is dated February 14, 1839, and was payable immediately; and the suit was com
The justice was right in holding that the statute had not run at the time the suit was commenced.
Such are my views of the case. But my brethren are of opinion that the delivery of the process to the constable was no part of the official duty of the justice, and consequently that there was no legal evidence before him that the suit was commenced on the 14th of February. Of course the return of the justice to the certiorari can prove, nothing concerning matters which were not properly before him. In this view of the case, the suit was commenced a day too late.
Judgments reversed.