Schlosser v. Lesher 1789
Common Pleas, Philadelphia
County:
March Term, 1789.
Schlosser verʃus Lesher.
T
HIS was an action of Indebitatus Aʃʃumpʃit for goods ſold and delivered. The Defendant pleaded Non Aʃʃumpʃit and Non Aʃʃumpʃit infra ʃex annos: The iſſue on the Non Aʃʃumpʃit 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 Ingerʃol and Sergeant, for the Plaintiff, and Levy and Tould, for the Defendant, the President ſtated the material circumſtances and arguments, and delivered the opinion of the Court as follows:
Shippen, Preʃident.—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, 2dly, 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 firʃt 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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Latitat from the King's Bench, or a Clauʃum ƒregit in the Common Pleas, the continuances muft be fet forth to be entered to the time of filing the bill, or declaration, in order to fhew that it was for the fame caufe of action.
This gives rife to the queftion, whether our writs of Capias and Summons refembly more the Original writs, or the Latitat and Clauʃum ƒregt: And, in order to folve this queftion, it will be neceffary to confider the reafon of the difference between thefe writs in England.
The Latitat and Clauʃum ƒregt are both writs of Treʃpaʃs ; yet, by the courfe of the Courts of King‘s Bench and Common Pleas, the Plaintiff may ground upon them declarations in any perfonal actions. But, when the declarations is in Aʃʃumpʃit (for inftance) a writ of Treʃpaʃs iffued within the fix years, could not be prefumed to be a writ that iffued in that caufe, unlefs, it was further fewn 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 iffuing it to the filing the bill or declaration. But, in the cafe of an Original proper to the action, that is never neceffary, becaufe it the declaration was in Aʃʃumpʃit, the original would fhew it was iffued in cafe: if the declaration was upon a bond, the original would fhew it was iffued in debt ; and, confequently, that it was a proper and legal foundation for the action: And the continuances are not neceffary to be fhewn asa proof that the writ as correfponded with the declaration, the law prefumes it was for the fame caufe of action, unlefs the contrary is fhewn.
That this is the reafon of the diftinction between Originals, and the writs of Latitat and Clauʃum ƒregit, to this purpofe, will appear from this ; that whenever the writ which commences the action, is of fuch a nature as to correfpond with the declaration, we find it will be fufficient to fet it forth without the continuances, although it be not an original: And, on the contrary, whenever the writ does correfpond with the declaration, it will not fupport the replication without the continuances, although it be an original. An inftance of the firft kind is the attachment of privilege in the Common Pleas, which will be found by the precedents, always to fpecity the nature of the particular action , whether in debt, or cafe, which is afterwards declared upon ; and hence, we find, in 1 Wilʃ. 168. the replication fhewing only the time of iffuing the writ without the continuances, will be fufficient. So, in the reverfed cafe, when a common Clauʃum ƒregit is the writ, although it be an original writ iffuing out of Chancery, yet, not being adapted to the action of Aʃʃumpʃit or debt, being only a foundation for the capias in the Common Plea and intended merely to give that Court jurifdiction, it will not be prefumed to be the foundation of fuch an action, unlefs the continuance are fet forth from the time of iffuing the writ. Hence it is evident, that it is from the
difagreement of the writ with the declaration only, that it becomes neceffary to enter the continuances, to fhew it iffued for the fame caufe of action, in order to prevent the bar of the ftatute of limitations: And, after all, the entry of the continuances in thofe cafes where they are faid to be neceffary, 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 ftatute of limitations is pleaded.
By our act of affembly, and the practice under it, the writs of Capias and Summons always fpecify the nature of the action you are to declare upon, and are, therefore, fimilar, in this refpect, to the originals out of Chancery, and the attachments oƒ privilege in the Common Pleas.
The ʃecond point made by the defendants counfel is, that, admitting the plaintiff by iffuing the writ, has faved the bar of the ftatute, yet, that the action ought to have been profecuted again within a reafonable time after the fix years expired, and that that reafonable time has been held to be one year.
In confidering the dates and times of the feveral tranfactions, the period during which the act of affembly fufpended the act of limitations, that is, between the 1ft of January, 1776, and the 21ft of June, 1784, is, to every purpofe, to be thrown out of the computation:– Then, from the time of the caufe of action arifing, to the time of iffuing the fummons, is 4 years, 9 months, and 10 days; from that time to the profecuting the fuit again, is 2 years, 6 months and 2 days ; making in the whole 7 years, 3 months and 12 days.
The cafes cited in fupport of the fecond point, are all cafes where, by the death of one of the parties, or from fome other caufe, the action had abated, and the court, in confidering what was a reafonable time to permit the party to bring a new action, have drawn their reafonings from the equity of the ftatute, which provides only for two cafes ; one, where the plaintiff had obtained a judgment which was reverfed for error, and, the other, where a verdict had paffed for the plaintiff, and the judgment was arrefted, and judgment given that the plaintiff fhould take nothing by his writ. But other cafes arifing, which put the plaintiff in the like fituation by an abatement of the action, the Judges thought, that they ought to have a reafonable time after the expiration of the fix years to renew their actions; from of them fay, that reafonable time was in the difcretion of the court, and depended upon the circumftances of the cafe; and others fay, that, within the equity of the ftatute, that reafonable time ought to be one year. But thefe are all cafes where the writ had actually abated, and could, confequently, afford no fupport to the new action:– How are the cafes of Orginals and Latitats, where nothing had happened to abate the writs? They are confidered as fubfifting foundations upon which the parties may profecute their fuits ; in the one cafe, by entering the continuances from the time of fuing out the writ, and, in the other, without any fuch continuances; in both cafes they are deemed fubfifting writs and the
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commencement of the action, for the purpofe of taking the cafe out of the ftatute of limitations, and the porfecution of the fuit afterwards is not confidered in the light of a new action, although fome procefs might be neceffary to bring the party into court. In Lily's Pract. Reg. 19, it is faid, “ the taking out the writ of Latitat is in “ nature of filing an Original, and, by doing it, the fuit is “ commenced within the meaning of the ftatute, although he does not declare “ aganiʃt the party within the time limited by the ftatute.”
As the cafes of fubfifting writs and abated actions are thus totally different, I have looked for cafe where there may be fome 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 cafe in which fuch a limited time has been fuggefted. It is in 1 Sid. 53. where Twiʃden, Juftice, fays, that he had known a fuit continued by Latitat for 5 years, before the bill filed ; And Horne, Secondary, faid, that a Latitat may be continued 7 years. If this may be confidered the limited time, the writ in the prefent cafe is long within it ; as, excluding the fufpended period, the fuit was again profecuted within two years and a half.
If this could have been confidered in the light of an abated writ, and a reafonable time, in the difcretion of the Court, was the rule, we ought certainly to take into our confideration the peculiar fituation of our country and the correfpondent laws, which reftrained creditors from profecuting their fuits with the fame advantages 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 profecuting their fruits at all, during the continuance of that reftraint. On this ground, therefore, the allowance in the prefent cafe would be very moderate, as it would not extend 3 months and a half beyond the time contended by the Defendant's Counfel.
On both points, we are of opinion, that the law is with the plaintiff.