Boyce v. Morgan

3 Cai. Cas. 133, 1 Cole. & Cai. Cas. 476

Opinion

IN ERROR on certiorari, upon an agreement entered into, on the 28th of December, not to sue a third person, the gravamen was laid, that he since that time had sued, and the summons was dated on the day of the agreement, On this, the defendant below insisted on a nonsuit ; but the plaintiff refusing to submit to it, a verdict was given in his favour. It was now contended, that the levying the plaint was the commencement of the suit; but the court, on the authority of Lowry v. Lawrence, 1 N. Y. T. R. 69, ruled, that issuing the summons, or warrant, was the beginning of the action, and reversed the judgment; the suit appearing on the face of the record, to have been instituted previous to any cause of action accrued.