Page:United States Reports, Volume 1.djvu/424

Rh 

1789.

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 commencement