though the plaintiff prevailed and had judgment against the rest, there can be no doubt that the indorser would be liable to the former for their costs.

It has been holden in the Circuit Court of the United States,' that the indorser of a writ is not only liable to the defendant for his costs, but likewise to the officers of the court for their fees, such as for the service or entry of writs, and that the proper remedy to recover them is by an attachment issuing from the court, to compel the payment of them, the plaintiff not being an inhabitant of the State.

Form of action against indorser. The remedy against an indorser of an original writ is by scire facias, and not by an action of debt.2

In the case of an audita querela, however, the statute expressly provides, that the remedy against the indorser shall be by action of debt.3

1 Anon. 2. Gall. Rep. 101. And vide Caldwell v. Jackson, 7 Cranch. Rep. 276.

2 Vide Ruggles et al. v. Ives, 6 Mass. Rep. 494. Miller v. Washburn, 11 Mass. Rep. 411. How v. Codman, 4 Greenleaf's Rep. 79. Reid v. Blaney, 2 Greenleaf's Rep. 128.

3 Stat. 1780. chap. 47. s. 2.

CHAPTER IX.

COMMENCEMENT OF A SUIT.

The question, what is the commencement of a suit, becomes often of great importance, as in case of a tender or the statute of limitations being pleaded.

There is some contradiction in the English books upon this subject, owing to the peculiar practice of instituting actions, in England.

In the practice there, there is what is termed process, or original process, which precedes or is supposed to precede, the filing of the bill or declaration. In the Common Pleas, the first process, now that a real original is dispensed with, is a capias, — in the King's Bench, a latitat, in the Exchequer, a quo minus.' This process in these courts may be issued, either in term time, or in vacation. If in vacation, it must always bear teste, as of the last day of the preceding term.2

And the issuing of this process is for some purposes, considered the commencement of the action, and for some purposes, not.

Thus a latitat may, in some cases, be sued out, before the cause of action has accrued: - and if any cause of action accrue, before filing the declaration,

13 Black. Com. Chap. 18, 19.

2 Cro. Jac. 561. 3 Keb. 213. Davis v. Owen. 1 Bos. and Pull. Rep.

this will be sufficient. In this case, the filing of the declaration, and not the issuing of the latitat, is deemed the commencement of the suit.

The same is true, also, though the writ be a bailable one. But although bailable process may be sued out, the defendant must not be arrested before the cause of action has accrued.3

And in all cases, too, the cause of action must have accrued, before the declaration is filed.1

To avoid the statutes of limitations, however, or a tender, or to support a penal action, in point of time, the issuing of the latitat, is considered as the commencement of the suit.5

But in these cases, whatever be the date of the latitat, the true time of its issuing may always be shewn. So that, although a latitat, if sued out in vacation, must bear teste as of the preceding term, yet the defendant may shew the day when it issued. Thus, where to a plea of the statute of limitations, the plaintiff replied, that the defendant did promise "within six years next before the suing out of the latitat,". a rejoinder, that though the latitat was tested of the 28th day of November, (the last day of Michalmas Term,) yet that it was really and truly sued out after that time, to wit, on the 8th day of December in that year, was sustained, and judgment rendered for the defendant.

6

1 Foster v. Bonner, Cowp. Rep. 454. Johnson et al. v. Smith, Burr. Rep. 950. Swancott v. Westgarth, 4 East. Rep. 75.

2 Best v. Wilding, 7 Term. Rep. 4.

3 Vent. 28. Swancott v. Westgarth, 4 East. Rep. 75. 41 Sell. Pract. 83.-4.-5.

Johnson et al. v. Smith, Burr. Rep. 950. Foster v. Bonner, Cowp. Rep. 454.

* Johnson et al. v. Smith, Burr. Rep. 950. 1 Sell. Pract. 86.

The same doctrine here laid down, in regard to the latitat in the King's Bench, applies to the capias in the Common Pleas; it having been settled, that in the case of all the statutes of limitation, it is enough to shew a capias, which every body understands to be now the commencement of a suit in the Common Pleas, the court always intending that an original has issued, and considering the capias as sufficient evidence of that.1

In the inferior courts, as the Marshalsea, the plaint is considered the commencement of the suit.2

When it appears from the record, that the cause of action accrued after the commencement of the action, the defendant may demur, move in arrest of judgment, or bring a writ of error. If it appear in evidence, the plaintiff may be nonsuited.*

3

In New York, the issuing or suing out of a writ, and not the filing of the bill or declaration, is the commencement of the action. So in all cases, where the time is material to save the statute of limitations."

5

Accordingly, a demand purchased by the defendant, after that time, or, as Livingston J. expresses it, "between the sealing of the process and the arrest,' cannot be set off against the plaintiff's demand, the statute authorizing the filing in set off of such demands

1 Leader v. Moxon, Black. Rep. 924-5. Ward v. Honeywood, Dougl. Rep. 62, and note. Pinero v. Wright, 2 Bos. and Pull. Rep. 235. 2 Ward v. Honeywood, Dougl. Rep. 62.

3 Carth. 113. Yelv. 71 a. note.

4 Ibid.

3

Lowry v. v. Lawrence, 1 Caines' Rep. 69. Bird et al. v. Caritat, 2 Johns. Rep. 342. Cheetham v. Lewis, 3 Johns. Rep. 42. Fowler v. Smith, 15 Johns. Rep. 326.

Burdick v. Green, 18 Johns. Rep. 14.

only as the defendant may have, at the time he is sued. Neither can the plaintiff recover a demand not due at the time of suing out the writ: nor will a right, acquired subsequently to that time, support his action.

Where it appeared upon the record that the writ issued, before the cause of action accrued, a special demurrer, for that cause, was sustained.2 Such a defect would be bad, upon general demurrer also, nor would it even be cured by verdict.3

But a verdict will not be set aside, on a motion for a new trial, because the suit was commenced, before the cause of action accrued.*

In the justices court, the issuing of the summons or warrant, is deemed the commencement of the suit.5

In Massachusetts, likewise, the issuing of the writ is deemed the commencement of the action. And the date of the writ, and not the time of its service, is prima facie evidence of the time of its issuing.

And if the date of the writ be the true time of its issuing, the writ will be considered as having been purchased on any part of the day of its date, to accord with the truth and justice of the case.'

But if the date of the writ be not the true time of its issuing, the real time, if important, may be shewn.

1

2

Carpenter v. Butterfield, 3 Johns. Cas. 145.

Lorwy'v. Lawrence, 1 Caines' Rep. 69.

3 Cheetham v. Lewis, 3 Johns. Rep. 42.

4 Crygier v. Long. 1 Johns. Cas. 393. Lawrence v. Brown, 2 Johns.

Cas. 225.

6

5

Bryce v. Morgan, 3 Caines' Rep. 133.

Badger v. Phinney, 15 Mass. Rep. 359. Ford v. Phillips. 1 Pick. Rep. 202.

7 Ibid.