Cheetham v. Lewis

3 Johns. 42

Opinion

Per Curiam.

It is settled, that the suing out of the writ is the commencement of the suit, (1 Caines, 69.)

¶ and by the record in the present case, it appears, that the action must have been commenced as early as the second Monday in November term, 1803, and that the cause of action did not arise until the 18th of November, in the same term. The action appears, therefore, to have been commenced before the cause of action accrued. (1 Tidd’s Prac. 368.) Though generally, the day may not be material, yet this must always be understood with this limitation, that it be laid to be before the commencement of the suit. In Venables v. Daffe, (Carth. 113.) this mistake was held not to be cured by verdict, and to be bad in arrest of judgment j and from the cases of Ward v. Honeywood, (Doug. 61.) and Dickinson v. Plaisted, (7 Term, 474.) it appears to be equally bad after verdict, since the statute of 4 Anne, c. 16. and would be ground for a writ of error. It is, therefore, error in substance, and may be tjtken notice of on a general demurrer.

Judgment for the defendant, with liberty to the plaintiff to amend his declaration, on payment of costs.

See also 1 Johnson, 342. Bird & others v. Caritat.