Hardy v. Corlis

21 N.H. 356 | Superior Court of New Hampshire | 1850

Perley, J.

The Revised Statutes, ch. 187, § 4, provide that “ if there are mutual demands between the plaintiff and defendant at the time of the commencement of the plaintiff’s action, one debt or demand may be set off against the other.” The set-off filed in this suit cannot be allowed, unless it was a demand which the defendant had against the plaintiff at the time when the action was commenced. Was the action commenced within the meaning of the statute, when the writ was made out and placed in the hands of the officer for service ? or, not until the writ was actually served ?

It has been well and long understood in our practice that, as a general rule, an action is commenced when the writ is filled up with the declaration, as the statute provides, in order to have it served on the opposite party. This rule is established on the authority of several reported cases; and, so far as we are aware, no decision has been made in this State applying a different rule to any case for any purpose. Soc. for Propagation of the Gospel v. Whitcomb, 2 N. H. Rep. 232; Robinson v. Burleigh, 5 N. H. Rep. 225; Graves v. Ticknor, 6 N. H. Rep. 537; Davis v. Dunklee, 9 N. H. Rep. 545; Clendennin v. Allen, 4 N. H. Rep. 385.

In Clendennin v. Allen it is said, that an action is not pending in court so as to satisfy the language used in the statute of February 9th, 1791, § 19, until the writ is served; but the court say in the same case, that the time when the writ is sued out is considered as the time of the commencement of the action.

We find no reason in the nature of the case for supposing that the legislature, in this provision of the statute, giving and defining the right of set-off, when they use the phrase, “ commencement of the action,” intended that a different construction should be given to the term from that which had been uniformly applied to it in this State at the time when the act was passed. We are therefore of opinion, that this action was commenced when the, writ was made and placed in the hands of the officer for service, which, as the case finds, was before the defendant obtained the. note filed in set-off. The particular time of the day when the suit was commenced and the note indorsed to the defendant, may be shown for the purpose of determining whether the defendant had his demand at the time when the action was commenced. Robinson v. Burleigh, supra.

Judgment on tibe verdict.