Hogan v. Cuyler — 8 Cow. 203

Majority

p. 203-2

Hogan against Cuyler, survivor of Cuyler.

Headnote

On error to the C. P. of Schenectady. The action in that court was assumpsit by Cuyler against Hogan, on three several promissory notes, set forth in the declaration, which also included the general money counts. The placita of the record was of the 3d Tuesday of January, 1825. The three notes were all declared on in one count. The cause was tried on the 20th of September, 1825. At the trial, upon the general issue, the plaintiff below claimed to recover on a note declared on, giving by the defendant *below, and payable to one Van Wormer, or bearer, 6 months after the date, which was May 5th, 1824. The defendant below, objected that the note was not due when the suit was commenced ; and introduced two witnesses, whose testimony resulted in establishing that the capias ad respondendum, was delivered to the under sheriff to be served on Saturday the 6th of Hovember, 1824. The defendant below insisted that the note was not due till the 8th of that month, that being the last of the 3 days of grace. The court below decided

p. 204

that the days of "grace, on a promissory note, were only allowable for the benefit of the indorser, and the maker was not entitled to them. They charged the jury accordingly, who allowed the note. The defendant below excepted, and the cause came here on bill of exceptions.

The issuing of the cap. ad. resp. is to every essential purpose, the commencement of the suit.

The three days of,grace are allowable, as between the maker and holder of promissory note.

And where 3 notes were declared on in the same count on one of which the 3 days of grace had not elapsed when the suit was commenced ; held, that the defendant might show this on the trial, upon the general issue; and that the .plaintiff could not recover upon that note.

Whether the issuing of the writ may not be inquired of at nisi prius, ás well to defeat as to sustain the action ? Quere. Vid. note (a) at the end of this case.

A. 0. Paige, for the plaintiff in error.

The issuing of the capias is the commencement of the suit. ( 1 Cain. 69 , 72; 9 John. 42 ; 10 John. 119 ; 2 John. 346 ; 3 Cain. 77 , 133.) Demands not due at the commencement of the suit, are always rejected on the trial. ( 7 John. 22 .) The party should be allowed to avail himself of this objection upon the general issue. It may be impossible to know, especially under the general counts, what the plaintiff will claim on the trial; so that the defendant can neither plead in abatement nor specially in bar. There can be no doubt that the 3 days of grace were allowable. (2. Cowen, 766. 6 T. R. 123.)

J. B. Lovett, contra.

The defendant can learn particulars by citing the plaintiff to show cause of action, or demanding a bill; but cannot avail himself of this defence at the trial. (1 John. Cas. 393; 2 id. 225; 7 John. Rep. 207 , 373. Com. Dig. Abatement, (G. 6.) Clift’s Ent. 10, 18, 19. 4 East, 76.) The most the defendant below could do, was to plead in abatement. On the question whether the days of grace were allowable, he cited 4 Mass. Rep. 45 , 245 ; 2 Burr. 669; 2 B. & P. 83.

The court below erred in permitting the note to be given in evidence. They were clearly wrong in deciding the maker was not entitled to the three days of grace. (Chit, on Bills, Phil. ed. 1821, p. 420, 1, and notes. 4 T. R. 148, 151; 6 T. R. 123; 2 Cowen, 766.)

It is perfectly well settled, that the-issuing of the capias ad respondendum is, for all essential purposes, the commencement of the suit; and that the plaintiff’s cause of action must exist at that time. (3 John. Cas. 145; 1 Cain. 69 , 72; 3 Cain. 133 ; 2 John. Rep. 346 ; 3 John. Rep. 42 ; 10 John. Rep. 119 .)

p. 205

The objection could have been taken advantage of in no other way than at the trial. The caption of the declaration was of January term, 1825 ; and it contained, in the same count, two .other notes, to which the objection did not apply. The plaintiff, therefore, had a good cause of action independent of this note; and the 1 John. Gas. 893, and 2 John. Gas. 225, do not apply.^[1]

The judgment must be reversed, and a venire de novo issue from the court below:

Judgment reversed.

(a) (a) Qumre, whether in this state the time of issuing the writ may not be inquired of at nisi prim, either to sustain or defeat the action. In England, the doctrine of the K. B. is, that when a case comes to trial at nisi prim, the time of suing out the writ may be inquired into for the purpose óf sustaining' the action, but not for the purpose of defeating it. And where the writ issues before the cause of action accrued, the defendant moves to set the proceedings aside for irregularity. Kerr v. Dick, 2 Chit. Rep. 11. The doctrine of our cases clearly is, that for every material purpose, the issuing of the writ commences the suit. Referring this to the filing of the declaration or bill, is the merest fiction.