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was decided on the ground of the nature of the ac[*117] tion, having myself a very short note of it. But *I

considered that this was either an action on the case, or an action of trespass, within the statute of limitations; for it would be very singular if this were to be considered as trespass of such a kind as to be taken out of so beneficial a statute. And in either way of considering it, the plea is a good bar.

Judgment was given for the defendant.

#CHAP. VI.

( 118 )

Of the Commencing and Suing of Actions.

THE statute requires that the several actions therein men. tioned shall be commenced and sued within the time limited;[1]

[1] Motions, are included in the terms soits and actions in the act of 1789, for limitation of suits upon penal statutes. The Auditor of Public Accounts vs. Graham, 1. Call's Rep. 475.

The Judge's order for a writ of Supersedeas, is the true commencement of the proceedings here ;'[Court of Appeals of Vir. ginia ;] and therefore, if that be within five years from the date of the judgment, although the writ is not taken out till the five years have elapsed, it will be in time. Overstreet vs. Marshal & Al. 3 Call's Rep. 192.

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In an action on the case on a note, to which the defendant pleaued the general issue, set-off and the Statute of Limitations, the jury found, the execution of the note and the amount due thereon; they also found, that by an injunction issued 7th July, 1787, by order of a Judge in the court of equity, and an order of the said court, that the note aforesaid was lodged in the hands of the clerk and master in equity, and that it appeared to the jury, that thereby the plaintiff was hindered from bringing suit on said note, that he afterwards brought suit on the 14th February, 1791. The question arising on this special verdict, was, whether the plaintiff's demand was barred by the Act of Limitations. And the Court said;

Whatever hardship there may be in this case, there is no legal " ground or principle to warrant the Court to render judgment for " the plaintiff

. The Act of Limitation would anount to a gencral and positive bar, were not certain exceptions contained in the "proviso; we cannot add to these, others which the legislature " has omitted ; nor construc cases to be within the saving, which is "plain were not meant to be included." Vance vs. The Er'ors, of Grainger, Cam. f Norw. Rep. 71. Sed vide, Montgomery vs. Hernandez & Co. 12 Wheat. Rep. 129 ; and Hernandez $ Al. 1's. Montgomery, 2 Mart. Rep. (IV. S.) 499, CoxTR-.

Io the case of The administrators of Colkings vs. The Surriring Partner of Thackston & Co. (Cam. of Norw. Rep. 93. 95.; The Court said; - The plaintiffs and the defen:lants having but the legislature(a) purposely avoided mentioning the teste

(a) Burr. 959.

6

agreed to refer the matters in dispute between them to arbitra" tors, takes the case out of the Siatute of Limitations, and the

present suit having been brought within three years after the reference had been entered into and made a rule of court, the present plaintiffs are entitled to recover in this suit."

The taking out of a writ, is the commencement of an action, to save the demand from the Statute of Limitations, and not the service of the writ. Allen vs. Mann, 1 Chip. Rep. 94.

A claim against the estate of a deceased partner, accruing in consequence of the insolvency of the surviving partner, after the Statute of Limitations had run upon the claims against such estate generally, is not barred, though not cxhibited within the period litnited by the statute. Pendicton & Al. vs. Phelps & Al. (In Equity.) 4 Day's Rep. 476.

In the case of Tyson vs. Simpson & Al. (2 Hayw. Rep. 147.) Taylor, J. delivering the Opinion of the Court, said, “ 'Í'he Act " of Limitations did not run so as to bar the action of the admin** istrator ; the letters were obtained not till lately; and the act

begins to run only from the time of obtaining them."

In the case of The Administrators of Quince vs. The Administrators of Ross, (2 layw. Rep. 180.) JOHNSTON, J. delivered the Opinion of the Court as follows." This bond was given in “ 1764, payable in December, 1764; in 1777 the obligor died ; " letters of administration issued in 1773, in the month of January ; " in 1794 the administrator died, and in 1798 new letters were is. “ sued to the present defendant. The rule is that after 20 years " acquiescence presumption of payment shall arisc, but if any cir

cumstances can be offered to account for the delay, these shall "hinder the presumption. Now here from 1773 to thic tirst of June,

1784, the courts werc shut up and the war intervened: after *5 1784 till 1731, when there was an administrator, is but 10 " years, and from December, 1764, to 10th March, 1773, is but i* six years, added together 16. After 1794 till the commence"luent of this fiction suit could not be brought because there was " no person to be sued; which sufficiently accounts for the delay: " So that there is not 20 years of computable time from the period " when this boud was payable to the commencement of this ac. “tion, and the presumption will not arise." Verdict for the pl.intisi

of writs, the exhibiting bills, the arresting, the holding to bail, summoning, serving, or any other form of process; but leaves to every court to say, “ what act of the party commences the suit;" and after the limited time, forbids that being done.

Prescription does not run against him who cannot sue. Here nandez & Al. vs. Montgomery, 2 Mart. Rep. (N. S.) 422. & Vido same case, in Error, 12 Wheat. Rep. 129.

A writ of error must be sued within twenty years from the time when the title to it accrued, or within five years after the same disability which existed at that time has ceased. Eager & Ux. vs. The Commonwealth & Munroe, 4 Mass. Rep. 182.

A promise made on the 1st of November, 1811, was sued on the first of November, 1817; and it was holden to be barred by the Statute of Limitations. Presbrey & Al. vs. Williams, 15 Mass. Rep. 193.

A mutual understanding and agreement between a debtor and creditor, that suit shall not be brought upon ap account until the debtor shall bave gone to Europe and returned, is a good har to the Act of Limitations during his absence from this country, and may be given in evidence to prevent the Court's expunging

from such account items appearing to have been due five years before bis death. Holladay, Er'or. &c. vs. Littlepage, 2 Munf. Rep. 316.

Under the practice in New Hampshire, the true time, when a writ is sued out or an action commenced, is the time when the writ is, in fact, filled up with the declaration in order to have it served on the oppositę party. Society for

propagating the Gospel vs. Whitcomb, 1 New-Hamp. Rep. (R. & W.) 227.

Tbe executor of A. was sued on a note of hand; plea Statute of Limitations ; Replication that by the act of 1789, (of So. Carelina,) nive months are allowed to executors and administrators after the death of their testator or intestate, before they can be sued, and that the plaintiff ought not to be barred, having been rė. strained by the aforesaid act nine months, from commencing his action. Held, that the plaintiff was allowed four years exclusive of the pine months. Moses vs. Jones' Ex'or. &c. 2 Nott & McC. Rep. 259.

The Court will not, in a penal action alter the term of which a declaration is entitled, to a previous term, in order to bring it within the time limited for the action. , Woodroffe vs. Williams, 1 Marsh. (Eng. Com. Pleas.) Rep. 419.

In the king's bench by the general rule(a) and course of the court, the filing of the bill is the commencing of a suit, and the bill of Middlesex, or latitat, but process to bring the party in ; except where replied to avoid the statute of limitations, or a tender when these processes are considered as the commencing of a suit.

To a plea(b), of the statute, the plaintiff replied a latitat purchased a long time before, with the intention to declare in that action : and the court held that he had, by that latital, saved himself from being barred, for it was a commencing of an action in the king's bench.

(*119] *But if the latilat be for a smaller sum than the

damages laid, the court will not intend it to be for the same cause, unless so stated.

In an action(c) on the case, &c. the plaintiff declared and laid his damages to four hundred pounds. The defendant pleaded the statute of limitations, "non assumpsit infra sex annos." The plaintiff replied, that he sued out a latitat to take the defendant two years before the action brought for 1501. And upon a demurrer to this replication, it was insisted, on the part of the defendant, that these were different actions; for no man would take out a latitat for 1501. and declare ad damnum 4001. It is true, if the plaintiff had averred it had been one and the same cause of action, it might have been otherwise; and so it was ruled by the court.

But as a latitat, when sued out in vacation, is tested of the preceding term, and therefore the action may appear to have been commenced within time, when, in fact, it was barred by

(a) Cowp. 454.

(6) Sid 52. Carth. 232.

(c) 8 Mod. 109

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