of the action, and the time of that commencement not being NEW-YORK, shewn, the court are at liberty, and ought to prefume it to have accrued afterwards. May 1803. W. Lowry V. In addition to this general reasoning on this fubject, it may A. Lawrence. be obferved that, in this inftance, the real caufe of action is ftated to have accrued in 1797; being the date of the bill of exchange and long prior to the iffuing of process. It is the affumption, founded on that undertaking, which is ftated to have been made in October 1801; and the time of the promife being wholly immaterial, the court will, in this circumftance, fee an additional motive for adopting the principle contended for by the plaintiff. Per curiam. This cafe comes before the court on demur rer. It was an action of affumpfit, and the declaration captioned of July term 1801. The time laid in the declaration, at which the cause of action arofe, is on the 11th day of October 1801. To this there is a fpecial demurrer, alleging for cause, that the action appears from the declaration to have been commenced before caufe of action arofe. It is, we take it, well fettled that if the plaintiff at the commencement of his fuit had no cause of action a subsequent right would not maintain his action. And it has been fettled in this court, in the cafe of Carpenter v. Butterfield, that as to every material purpose, the iffuing the writ was the commencement of the fuit-so that a note purchased by the defendant after that time could not be set off against the plaintiff's demand.* • See Crygier. Long, Cole. Ca. Prac. 103. that if defendant put in bail,and plead The declaration must be captioned of the term when the writ is returned served. This point is fettled in the cafe of Smith v. Muller, and it is there alfo determined that the in chief, he canplaintiff cannot recover any demand after the term when the not, after verdict, take adwrit is returnable, though before the declaration is actually vantage of the writ's being fufiled. Juftice Buller there fays, according to the antient prac- ed out before tice the declaration was actually delivered the fame term the cause of action writ was returned, and it was only in cafe of the plaintiff that arrest be before the time of actual delivery was enlarged, but still it must be debt due, appliconfidered as delivered nunc pro tunc. Upon the principles of thefe authorities therefore, it muft appear from the face of the declaration in this caufe, and the court muft neceffarily intend the facts, that the writ was returned in July term 1801, and of course the action, both in fact, and technically fpeaking, commenced previous to that arofe. If the cation ought to be to a judge or the court with out putting in bail. May 1803. W. Lowry V. A. Lawrence.. NEW-YORK, time. But the plaintiff alleges his caufe of action to have arifen on the 11th of October thereafter. We think therefore it appears upon the face of the record, that the action. was commenced, before the right of action accrued. The time of actually filing the declaration cannot, as contended by the plaintiff's counsel, be confidered the commencement of the fuit if therefore the defendant, by plea, had put the fact in iffue, it would have been an immaterial fact; all the material facts appear by the plaintiff's own fhowing. In the cafe of Ward v. Honeywood, the judgment was reverfed on marshalfee pro- writ of error, on the ground that it appeared on the face of cefs, where the the record, that there was no cause of action when the fuit was proceedings are by plaint; and commenced-if this would be error after judgment, advantage court the plaint may certainly be taken of it by demurrer. Doug. 61. that cafe was on in an inferior is as an original. Savage v. Knight, 1 Leon. 302. See the obfervation of Afhhurft J. in Doug. 62. The court will not pronounce judgment on a prifoner con terminer of a We are therefore of opinion that judgment ought to be for the defendant. Livingston J. In England it is fettled, that the filing of a bill or declaration is to be regarded for every effential purpose as the commencement of a fuit, Vid. Cowp. 454—but in Carpenter and Butterfield, decided by this court, a different rule was adopted. The iffuing of a writ was there confidered as the beginning of an action, fo much fo that the defendant was not permitted to fet off against the plaintiff's demand, a note which he had obtained for valuable confideration between the fealing of the procefs and the arrest. This rule, to operate fairly, must be mutual-if an action begins by iffuing a writ fo as to deprive the defendant of a set-off in the case mentioned, neither ought the plaintiffs to recover a demand not then due. My judgment therefore in favour of the defendant is not founded on British authorities, but entirely on a former decifion of our own. M'Neill's cafe. THE prifoner had, together with two other perfons, bec victed at oyer & convicted of a confpiracy at the last oyer and terminer for the confpiracy, if the city and county of New-York, but had not furrendered to his bail in time to receive fentence: he afterwards came in, and not before them, was now brought up, on his own petition, to have judgment but will admit pronounced; the public profecutor appeared, but the record of record of his conviction be to bail. the conviction not being made up and brought into court, the NEW-YORK, bench faid they had nothing before them on which to pro- May 1803. ceed; and therefore admitted him to bail. Anonymous. M'Neil's cafe. THE notice of motion in this cause was served on a perfon Service. in the house of the attorney, and where he kept his office : but held not sufficient, as it ought to have been on a clerk in the office. Swartwout ads. Gelfton, Cole. Ca. Prac. 77. "The service must be on fome "perfon in the office and belonging there; if nobody is there, it must be upon fome "one in the house where the attorney refides or the office is kept; and if nobody "is there, it may be left in the office." Moyle against Gillingham. tices on agents for non-enume NOTICE may be ferved, on an agent in town, on the first Service of noday of term, to fhew caufe on the next day for non-enumerated motions; but then, it must be accompanied with a fuffi- rated motions. cient excuse for not having been for the first day. If the excufe be received, the adverse party will have till next term to fend into the country to his principal, for counter affidavits. Abraham L. Brain against Rodelicks & Shivers. Commiffion to examine may be before iffue join ed. A rule for till the rule be IN this cause it was neceffary to examine a witness in the Havannah; and, as that port was open only to certain privileged veffels, in April 1802 a rule for a commiffion was grant- commiffion fufed before iffue joined, to prevent lofing an opportunity of pends the trial tranfmiffion which then presented itself. No return having vacated: but if been made, the caufe was noticed for trial for the last fittings. in March 1803, when the defendant's attorney, feeing fome trial, and exwitneffes in the court, whofe abfence, he feared,, might delay amine witneffes, the cause after the return of the commiffion, appeared and ex- ver of the rule amined them; ftating however, the circumstances of his cafe, to vacate. and that he begged to be confidered as acting without prejudice to his future rights. He now moved to fet afide the L appear at the it will be a wai NEW-YORK, verdict, with costs; the plaintiff having proceeded to trial without vacating the rule for the commiffion. May 1803. Brain V. Per curiam. When a rule for a commiffion has been obRodelicks & tained, it suspends the cause till, on application to the court, a vacatur be ordered and entered. But if the defendant appear and examine witneffes, it is a waiver of his commiffion, and the vacatur is unneceffary. The motion must be refused. anr. When there are crofs caufes, and material facts be omitted in a Codwife, Ludlow & Co. against John Hacker. THE plaintiffs, in the fittings of June 1802 at New-York, the plaintiff in each has obtain as owners of a ship of which the defendant was captain, had, ed a verdict, if in action against him for deviating from his orders, obtained a verdict, fubject to the opinion of the court on a cafe to be cafe made by a made; and he, in a cross fuit, had recovered against them defendant, and the papers from a larger fum, fubject to deductions, in case the opinion of the whence they court should be against him as to certain items, charged and allowed by the jury. ment to be en may be inferted, be in the hands of the plaintiff, the court will A cafe was made on the part of the defendant to which the not order judg- plaintiff propofed amendments, which were adopted; the tered, becaufe caufe was then noticed for argument for the next October cafes have not term, and also for January term following, in Albany. But been delivered, and tho' the cafe it was then recollected, that fome material facts had been has been notic- omitted, without which the cafe could not present the only give leave to a- important question in the caufe. This was mentioned to the mend and per- plaintiff's attorney, who would not fay whether he would confent to the amendments or not. The papers from whence they were to be drawn, and the cafe !perfected, were in the hands of the plaintiff's attorney in New-York; fo that the cafe could not be completed in Albany. No application was made to a judge to correct the amendments. Nor had cafes ed, but will fect. been delivered. Hopkins now moved to set aside the original order to stay proceedings that a case might be made, and for leave to enter up judgment. Riker refifted the application, because the cafe was imperfect, and the papers from whence only it could be completed, were in the hands of the plaintiff. Per curiam. We must deny the motion; because, in the first place, there were crofs verdicts to nearly the fame amounts. Secondly, the cafes were never perfected, and it NEW-YORK, V. did not appear to be exclufively the fault of either. the plaintiff's attorney not having denied the omiffion of cer- Codwife & ors. tain material facts, the court would prefume they had appeared on the trial, and ought to be a part of the cafe. Let the cafe be perfected within 30 days. Hopkins prayed costs, infisting he had been regular. Per curiam. We confider that the plaintiff was irregular, in not answering when applied to, whether he would receive amendments or not. Hacker. N. B. It was faid by the court, that where a defendant, Practice as to after verdict, makes a cafe and notices for argument, if he noticing cales. does not appear at the time when called, judgment fhall go : but when the plaintiff notices a cafe made on the part of the defendant, and the plaintiff is not ready, it fhall go down. P. Kemble, furvivor of Governeur and Kemble, against Walter Bowne. Tried before Judge Livingston, 9th of April 1802. veffel in a dif fail, and ftated ASSUMPSIT on a policy of infurance, not valued, dated In a policy on a the 3d September 1800, on the ship Helen, " At and from tant port from Point-Petre, Guadaloupe, to St. Thomas's, beginning the ad- whence the is to venture at and from Guadaloupe and to continue till her ar- to be there on a rival at St. Thomas's, and there fafely moored." At a pre- and from" mean certain day," at mium 17 per cent. The declaration contained an averment the day on which that the insurance was made for Charles Gobert. fhe is mentioned to be there, and The defendant received no information from the broker, the policy takes except that the ship was at Guadaloupe the 28th of July. The Helen was a prize ship, and purchased for Charles Gobert, 20th November 1799, at Point-Petre, for 6450 dollars and 48 cents, including commiffions on the purchase. A prior insurance had been made on the fame veffel and voyage at St. Thomas's, for 6400 dollars, at a premium of 30 per cent. (Gobert being there) which after paying commiffions and premium, left 4349 dollars and 35 cents received by Gobert, which it was agreed was to be confidered as a prior infurance. The amount infured on the policy was 7500 dollars, and for that fum the prefent action was instituted. effect from thence. It is not neceffary to long a veffel has disclose how lain in port antecedent to the policy. The two per cent delofs is, in cafe of difafter, a part of the premium. ducted on a total |