18 Conn. 290 | Conn. | 1847
This writ is dated on the 10th day of November, 1845, and, as appears by the return of the officer, indorsed upon it, was duly served, on the 14th day of January, 1846, and was legally returned into court, with that and no other certificate of service. Every thing appears in the usual and legal form.
To this writ and declaration the defendant has made no objection, but has appeared and pleaded the general issue, and proceeded to trial. And upon a trial to the jury, for the first time, the defendant objects, that this action was in truth commenced on the 10th day of November, 1845, and so that a cause of action which accrued after that date, as it is conceded this did, cannot be proved and sustained under this process.
The conceded facts, relied upon, as sustaining this objec
The only process which we can recognize, and which has become one of the files and records of the court, and which has been returned as having been served at all, is this one served on the 14th day of January, 1846; and it is to this which the defendant has made answer, and upon this proceeded to trial. The acts done on the 10th day of November before, as it seems to us, no more affect this proceeding, than if this were a new writ and process, served after the former one had been destroyed. There was no stamp or other duty payable, which made it necessary for the plaintiff to obtain a new writ.
It would be well to look at the effects which might follow upon the present state of this record, if the objection of the defendant should prevail. Suppose no articles of charge which fell due between the 10th day of November, 1845, and the 14th day of January, 1846, could be recovered in this suit, and the plaintiff should commence another action to recover them. We think it certain, that this record would bar their recovery ; for this judgment, upon the present condition of the record, would embrace all book debt claims existing before the 14th day of January, 1846.
We think also, that this objection, if of force, should have
The only complaint of the defendant, therefore, is, that the plaintiff made use of the same writ on both occasions. And inasmuch as this has produced no injury to the defendant, nor violated any principle of law known to us, we cannot advise a new trial.
New trial not to be granted.