Page:United States Reports, Volume 1.djvu/422

 

verʃus.

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, ſtated the material circumſtances and arguments, and delivered the opinion of the Court as follows:

, 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 Rh