This was an action of Indebitatus Assumpsit for goods sold and
delivered. The Defendant pleaded Non Assumpsit and Non Assumpsit
infra sex annos: The issue on the Non Assumpsit was tried, and a
verdict found for the Plaintiff. To the plea of the statute of
limitations, the Plaintiff replied, a writ of summons issued on a
particular day within the six years, which was returned nihil.
Whether the replication contained matter sufficient to prevent
the bar of the statute of limitations, was the question; and after
an able discussion by Ingersol and Sergeant, for the Plaintiff, and
Levy and Todd, for the Defendant, the President stated the material
circumstances and arguments, and delivered the opinion of the Court
as follows:
Shippen, President.
Two points have been made in this case by the Defendant's
counsel: 1st, That it does not appear that the process was issued
for the same cause of action, as it is not continued to the time of
filing the declaration. And, 2ndly, That if this did appear, the
second action should have been brought within a reasonable time
after the expiration of the six years; which, reasonable time they
restrict to one year.
As to the first point, it is agreed by the counsel on both
sides, and it is undoubtedly the law, that where an Original is
replied to the plea of the statute of limitations, it is sufficient
to shew when the writ issued, without any continuances; but where
the writ is a
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411, 412
Latitat from the King's Bench, or a Clausum fregit in the Common
Pleas, the continuances must be set forth to be entered to the time
of filing the bill, or declaration, in order to shew that it was
for the same cause of action. This gives rise to the question,
whether our writs of Capias and Summons resemble more the Original
writs, or the Latitat and Clausum fregit: And, in order to solve
this question, it will be necessary to consider the reason of the
difference between these writs in England. The Latitat and Clausum
fregit are both writs of Trespass; yet, by the course of the Courts
of King's Bench and Common Pleas, the Plaintiff may ground upon
them declarations in any personal actions. But, when the
declaration is in Assumpsit (for instance) a writ of Trespass
issued within the six years, could not be presumed to be a writ
that issued in that cause, unless it was further shewn in the
replication, that it was taken out with an intention to declare in
that action; and, as evidence of that intention, that the
continuances were entered from the time of issuing it to the filing
the bill or declaration. But, in the case of an Original proper to
the action, that is never necessary, because if the declaration was
in Assumpsit, the original would shew it was issued in case: if the
declaration was upon a bond, the original would shew it was issued
in debt; and, consequently, that it was a proper and legal
foundation for the action: And the continuances are not necessary
to be shewn as a proof that the writ issued for the same cause of
action; for, being such a writ as corresponded with the
declaration, the law presumes it was for the same cause of action,
unless the contrary is shewn. That this is the reason of the
distinction between Originals, and the writs of Latitat and Clausum
fregit, to this purpose, will appear from this; that whenever the
writ which commences the action, is of such a nature as to
correspond with the declaration, we find it will be sufficient to
set it forth without the continuances, although it be not an
original: And, on the contrary, whenever the writ does not
correspond with the declaration, it will not support the
replication without the continuances, although it be an original.
An instance of the first kind is the attachment of privilege in the
Common Pleas, which will be found by the precedents, always to
specify the nature of the particular action, whether in debt, or
case, which is afterwards declared upon; and hence, we find, in 1
Wils. 168. the replication shewing only the time of issuing the
writ without the continuances, will be sufficient. So, in the
reversed case, when a common Clausum fregit is the writ, although
it be an original writ issuing out of Chancery, yet, not being
adapted to the action of Assumpsit or debt, being only a foundation
for the capias in the Common Pleas and intended merely to give that
Court jurisdiction, it will not be presumed to be the foundation of
such an action, unless the continuances are set forth from the time
of issuing the writ. Hence it is evident, that it is from the
disagreement
Page 1 U.S.
411, 413
of the writ with the declaration only, that it becomes necessary
to enter the continuances, to shew it issued for the same cause of
action, in order to prevent the bar of the statute of limitations:
And, after all, the entry of the continuances in those cases where
they are said to be necessary, is little more than matter of mere
form, as it appears in 1 Sid. 53, 60, that they may be entered by
the attorney in his chamber, at any time, even after the statute of
limitations is pleaded. By our act of assembly, and the practice
under it, the writs of Capias and Summons always specify the nature
of the action you are to declare upon, and are, therefore, similar,
in this respect, to the originals out of Chancery, and the
attachments of privilege in the Common Pleas. The second point made
by the defendants counsel is, that, admitting the plaintiff by
issuing the writ, has saved the bar of the statute, yet, that the
action ought to have been prosecuted again within a reasonable time
after the six years expired, and that that reasonable time has been
held to be one year. In considering the dates and times of the
several transactions, the period during which the act of assembly
suspended the act of limitations, that is, between the 1st of
January, 1776, and the 21st of June, 1784, is, to every purpose, to
be thrown out of the computation: Then, from the time of the cause
of action arising, to the time of issuing the summons, is 4 years,
9 months, and 10 days; from that time to the prosecuting the suit
again, is 2 years, 6 months and 2 days; making in the whole 7
years, 3 months and 12 days. The cases cited in support of the
second point, are all cases where, by the death of one of the
parties, or from some other cause, the action had abated, and the
court, in considering what was a reasonable time to permit the
party to bring a new action, have drawn their reasonings from the
equity of the statute, which provides only for two cases; one,
where the plaintiff had obtained a judgment which was reversed for
error, and, the other, where a verdict had passed for the
plaintiff, and the judgment was arrested, and judgment given that
the plaintiff should take nothing by his writ. But other cases
arising, which put the plaintiff in the like situation by an
abatement of the action, the Judges thought, that they ought to
have a reasonable time after the expiration of the six years to
renew their actions; some of them say, that reasonable time was in
the discretion of the court, and depended upon the circumstances of
the case; and others say, that, within the equity of the statute,
that reasonable time ought to be one year. But these are all cases
where the writ had actually abated, and could, consequently, afford
no support to the new action: How are the cases of Originals and
Latitats, where nothing had happened to abate the writs? They are
considered as subsisting foundations upon which the parties may
prosecute their suits; in the one case, by entering the
continuances from the time of suing out the writ, and, in the
other, without any such continuances; in both cases they are deemed
subsisting writs and the
Page 1 U.S.
411, 414
commencement of the action, for the purpose of taking the case
out of the statute of limitations, and the prosecution of the suit
afterwards is not considered in the light of a new action, although
some process might be necessary to bring the party into court. In
Lilly's Pract. Reg. 19, it is said, 'the taking out the writ of
Latitat is in nature of filing an Original, and, by doing it, the
suit is commenced within the meaning of the statute, although he
does not declare against the party within the time limited by the
statute.'
As the cases of subsisting writs and abated actions are thus
totally different, I have looked for cases where there may be some
limited time for proceeding upon the foundation of the old writ,
when there has been no abatement of it; and I have met with but one
case in which such a limited time has been suggested. It is in 1
Sid. 53, where Twisden, Justice, says, that he had known a suit
continued by Latitat for 5 years, before the bill filed; And Herne,
Secondary, said, that a Latitat may be continued 7 years. If this
may be considered the limited time, the writ in the present case is
long within it; as, excluding the suspended period, the suit was
again prosecuted within two years and a half.
If this could have been considered in the light of an abated
writ, and a reasonable time, in the discretion of the Court, was
the rule, we ought certainly to take into our consideration the
peculiar situation of our country and the correspondent laws, which
restrained creditors from prosecuting their suits with the same
advantage as at other times, as they could take out executions only
for one third of their debts in one year; and this certainly
deterred many from prosecuting their suits at all, during the
continuance of that restraint. On this ground, therefore, the
allowance in the present case would be very moderate, as it would
not extend 3 months and a half beyond the time contended for by the
Defendant's Counsel.
On both points; we are of opinion, that the law is with the
plaintiff.
Judgment for the Plaintiff
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