Jencks v. Phelps , 4 Conn. 149 ( 1822 )

Hosmer, Ch. J.

The question raised in this case, is, whether the escape alleged was anterior to the commencement of the action: and that depends on this inquiry; is the suing out of the writ, or the service of it, the commencement of the action?

Much unnecessary learning has been displayed on this point of practice. If the inquiry before the court is not novel, and we are not called on to originate a rule, the peculiar practice of Westminster-Hall, or of the neighbouring states, is of no importance. The point in controversy has been long established in this state; and the service of the writ has been considered as the commencement of the suit. Were it necessary to go into the argument, it would not be difficult to shew, that this rule of practice is attended with manifest convenience, and results in no injustice. The case of Clark v. Helms, 1 Root 486. decisively proves, that an action here is not considered as commenced, until the service of it on the defendant; and to the same effect was the case of Holdridge v. Wells, in the year 1801, before the supreme court of errors. These determinations harmonize with the familiar practice of taking out blank writs signed by a magistrate, and with the alteration of them before service, the legal propriety of which, in relation to a summons, was recognized, by this court, in Parsons v. Ely and Parsons, 2 Conn. Rep. 377.

On a principle of practice, then, long established, the escape for which the plaintiff has sued, was anterior to the commencement of this action.

The other Judges were of the same opinion.

New trial not to be granted.