Townsend v. Chase

1 Cow. 115 | N.Y. Sup. Ct. | 1823

Curia.

The judgment is clearly according to the justice of the case. The plea, of a former action, was not sustained by competent proof. The 21st section of the twentyfiye dollar act,^(a) makes the official certificate of the Justice legal evidence, only after a judgment rendered. It is then evidence of due judgment, and of the proceedings which led to it. This is the obvious meaning and construction of that section. But if the character of the evidence were unexceptionable, it does not support the plea; though it was, undoubtedly, a good bar, if sustained. This was settled in Douglass v. Hoag, (1 John. Rep. 283.) The same case, and also the case of Boyce v. Morgan, (3 Caines, 133,) determine, that the issuing of the summons is the commencement of the suit. In this case, both summonses were issued upon the same day, but the summons, in this suit, was first served. After it was served, Townsend handed to the same officer the summons in the other suit.

In the absence of proof, as to the time of issuing, the process first served must be presumed to have been first issued ; and where both writs are issued upon the same day, that suit must be considered as first commenced, in which the writ is' fust served; although the other writ was, in fact, first issued ; the Court not distinguishing between different parts of the same day.^(b)

Judgment affirmed.

(a) ,1S. L. 8*

(b) Co. Litt. 135, b. 2 Bl. Com. 141. And vid. 8 John. Rep. 350.