Davis & Center v. West

5 Wend. 63 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The difficulty here is, that it was not shewn that this suit was commenced by the capias issued in October term, 1826. The plaintiff should have shewn that the copias on which the defendant was arrested, was a testatum founded on the previous writ, or an alias or pluries. It does not necessarily follow that this is a continuation of the former suit; and that -is a fact which the plaintiff is bound to shew.

Under the pleadings in this case, the plaintiff was bound to prove the facts which he must have averred in a replication to a plea of the statute. The precedents all state either the issuing of one writ and the declaration upon that, writ, or two writs, the first returned not taken with continuances to the writ which was effectual. By the indulgence of the courts the continuances may be entered at any time, but a connection must be shewn between the two writs. 1 Tidd, 92. This practice is fully sustained by the case of Smith v. Bower, 3 T. R. 662, where the replication stated the issuing a bill of Middlesex within six years, and continuances to the time when an attachment of privilege was sued out; but the court said the replication was bad, because the attachment of privilege was not a continuation of a former, but the commencement of a new suit. All the judges expressed the opinion that the suit must be duly continued, and that it must so appear on the record.

Several authorities have been referred to which shew that the first writ must be returned. In this case the writ was returned ; and though it be conceded that it was returned irregularly, that irregularity could not be taken advantage of in this way ; the question here is, whether a suit was commenced in fact, not whether it was regularly proceeded in j and if any irregularity existed, probably it would be waived by the defendant’s not moving to set aside the proceedings, had any connection been shewn between the writ returned irregularly and that upon which the defendant was brought into court.

Both the necessity of shewing the continuance of the suit commenced by the first process, and the waiver of the irregularity are proved by the case of Beardman v. Rattenbury, 7 Com. Law, 157 ; 5 Barn. & Ald. 452. In that case, to take the case out of the statute, the issuing a testatum special capias within six years was shewn, and its return was non est inventus j and secondly, an alias testatum issued subsequently to the six years; one term intervened without shewing any writ returnable. The court seemed to concede that it was irregular to issue a testatum special copias in the first instance, *3ut '*■ was sufficient for the commencement of the suit, and the plain jiff might have amended if an objection had been made, and the continuances might be entered at any time. But certainly there must be some process shewn" to^the court which may be connected with the first process by continuances to be afterwards entered; All the other objections, to the form of the process, the amount of damages and the change of the attornies, could not avail here. But the want of a writ founded upon the copias of October term, 1826, leaves this case as if no such writ had ever issued.

The judge decided correctly, and a new trial must be denied.