Schlosser v. Lesher

1 U.S. 411

1 Dall. 411

1 L.Ed. 200


No. ____.

Court of Common Pleas, Philadelphia County

March Term, 1789


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 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 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 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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