
    Sabin against Wood.
    NEW YORK,
    May, 1813.
    Bills against hes deemed to only from, the thTbm.hiin^entitled s^nevaiiv td' a plaintiff is ail°t of action arose, If the true time when the cause of action arose is set forth in the bill, and it is subsequent to the term in which it is filed, and there is no special memorandum, it is had on special demurrer.
    THIS was an action of assumpsit on a promissory note, daied the 16 th of April, 1810, payable six months after date, to John. Lord or order, and by him endorsed to the plaintiff. The defen<jant was an attorney of this court. The caption of the bill against him was of January term, 1812, without any special memorandum, and was served on the defendant, in vacation, about ^le 1st °-‘ May. It was proved that the note was purchased by ¿}ie plaintiff, and transferred to him subsequent to January term, and after the SOth of March, 1812. The plaintiff proved that the bill was filed and served after the transfer of the note to him. The defendant objected that as the plaintiff’s cause of action arose after the term in which the bill was filed, he could not re** Cover; and a verdict was taken for the plaintiff, point. reserving the
   Per Curiam.

The bill being entitled of January term generally, the action was, by fiction of law, deemed to have been commenced as of the first day of that term. But this being fiction merely, it is made to yield to justice and the truth of the case. Bills against attorneys may be filed in vacation, and the suit is, in fact, commenced only from the filing of the bill, which was in this case after the cause of action arose; and as this was shown upon the trial, the verdict was proper, and the plaintiff is entitled to recover. The cases of Guy v. Kitchiner, (2 Stra. 1271.) and of Morris v. Pugh, (3 Burr. 1241.) are to this effect. In those cases the plaintiff was allowed to show when the cause of action arose, and that in opposition to the memorandum. If the true time of purchasing the note had been set forth in the bill, unaccompanied with a special memorandum of the time of filing it, the bill would have been bad on special demurrer; but even then the court would have allowed the plaintiff to amend the caption of the bill. (Lowry v. Lawrence, 1 Caines' Rep. 69. Dodsworth v. Bowen, 5 Term Rep. 325.)

Judgment for the plaintiff, 
      
       See 3 Johns. Rep. 42. Ante, p. 119.
     