Page:United States Reports, Volume 1.djvu/425

414 

1789.

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.

Judgment for the Plaintiff. SUPREME