Reed v. Brewer ( 1823 )

Haywood, J.

The writ bore teste in February, 1820 ; it was indorsed as issued on the 6th of August, 1821; and it was indorsed as received by the sheriff soon afterwards. After judgment and appeal to this Court in the nature of a writ of error, the question made for the opinion of the Court, is whether this writ shall be taken to have borne date on the 20th of February, 1820, which was before the debt became payable on the note

Note. — This case is cited in our digests as turning upon the point, that the issuance of the writ before the cause of action accrues is matter in abatement which may (Heiskell’s Dig., p. 10), or must (Meigs’s Dig., p. 4) be pleaded in abatement. The Court was, however, unanimous that the date indorsed on the writ, which was after the maturity of the note in this case, was the actual commencement of the suit. There is a conflict in the decisions upon the point suggested, as will he seen from Heiskell’s Dig. § 35 ; 2 Y. 279 ; 2 Head, 52. — Ed.

sued on, namely, in June, 1821, or whether it shall be taken to have issued on the 6th of August, 1821, which was after the debt became payable. The cases cited in support of the error assigned were 4 E. 75; 7 Term. 4 Cow. ch. 454. There is no real hardship here, for the defendant was not arrested ’before the debt became due, but the contrary appears. The writ bore a wrong date, and for that cause might have been abated by plea; for if a writ for arresting the defendant can be made returnable at a term subsequent to that which is next after the date, the defendant might be imprisoned a long time. But here the defendant making no plea to have it abated, but pleading in chief to the action, has waived his right, and it is too late now to complain of irregularity. The real commencement of the writ [suit ?] for the purpose of computing time under the Act of Limitations, is to the day indorsed on the writ, which is by direction of an act of Assembly, and is, therefore, as much a matter of record as the writ itself.

BROWN and Whyte, JJ.

that the date of the writ was the day of its issuing, indorsed on the back.

Judgment affirmed by the opinion of all the Court.