evidence of an original having been sued out, for the court will presume it.

The commencement of an action in an inferior court will prevent the statute of limitations from attaching upon the cause. of action.

In Bevin v. Chapman, 1 Sid. 228. the court of king's bench held, that if an action be commenced in an inferior court, and then removed by habeas corpus, and they proceed anew, that commencement serves to prevent the statute of limitations, which was recognized in Mois v. Brereton, Raym. 553. The court also held, that if a plaint be levied in an inferior court within the six years, and then it is removed into the king's bench by habeas corpus, and the plaintiff declares there de novo, and the defendant pleads the statute of limitations; the plaintiff may reply, and show the plaint in the inferior court; and that will be sufficient to avoid the statute of limitations.

So, where debt was brought in the palace court, (a) and after some proceedings there, the six years expired; the defendant sued a habeas corpus, and removed the cause into the king's bench, where the plaintiff declared de novo, and the defendant pleaded, that the cause of action did not accrue within six years before the teste of the habeas corpus; and this was held to be a good plea; but that the plaintiff might reply the suit below, and show that to have been within the six years: not that this suit was a continuance of the suit below, but that the plaintiff had *rightfully and legally pursued his right; and [*143] it should not be in the power of the defendants to defeat or hinder him of a remedy, without any default; as, where one brings an action before the expiration of six years, and dies before judgment, the six years being expired, this shall not prevent his executor.

(a) Salk. 424.

Action upon the case(a) upon several promises; and the plaintiff declared, first, upon a promissory note of 12l. 11s. ; second count, upon an indebitatus assumpsit for 201. money lent; and, third, for money laid out. To the first count, upon the promissory note, the defendant pleaded, that the cause of action did not accrue infra sex annos; and to the other two counts he pleaded non assumpsit generally; upon which issue was joined.

And as to the defendant's plea to the first count, the plaintiff replied, and admitted that the cause of action did not arise within six years before his exhibiting his bill in this court, but that it arose the 25th March, 1720, and that, upon the 11th February, 1725, in order to recover the money due to him upon that promise, he levied his plaint in the sheriff of London's court, in placito transgressionis super casum; and avers that, secundum consuetudinem civitatis præed', he there declared against the defendant in an action upon the case, and sets forth his declaration; which was, eo quod the defendant, such a day, indebitat' fuit quer', in 201. pro divers. pecuniarum summis per præd' def. præfat' quer' prius debit, which he promised to pay then the plaintiff set forth, that the defendant hereupon brought his

writ of habeas corpus, by virtue of which the said plaint [*144] was removed into this *court, and the plaintiff declared against him de novo; and avers it to be pro eadem causa actionis prò qua levavit querelam suam præd' et præfertur: and then he avers, that the cause of action did accrue within six years before his levying the said plaint in the sheriff's court, and therefore prayed judgment.

To this replication the defendant demurred, and showed for cause, that it did not appear by the plaintiff's replication, that his bill against the defendant in this court was for the same cause of action as that for which he levied his plaint in the court below. Upon which there was a joinder in demurrer: and several exceptions were taken to the replication. 1st. That it

(a) Stra. 719.

ought to appear, either by the proceedings themselves, or by sufficient words of averment, that the cause of action is the same in both courts; and in this case, it does not appear by any means upon the face of the proceedings, that the cause of action is the same in both courts; for the declaration in the inferior court is upon an indebitatus assumpsit, and the declaration here is upon a promissory note, which are causes of action manifestly different: nor is there any sufficient averment in the replication, to show the identity of the cause of action in the two counts for the words, are only these, quod [the plaintiff] exhibuit billam suam pro eadem causa actionis præd' ut præfertur, which is not issuable; neither is it confined to the matter of the first count, as it ought to have been, but goes generally to the plaintiff's whole declaration in this court. 2dly. The causes of action appear plainly to be different; because, the declaration in this court being upon a promissory note, and the declaration in the court below being upon an indebitatus assumpsit for a different sum, they cannot be intended to be the [*145 Í same, for the promissory note could not be given in evidence upon the indebitatus assumpsit; and the two actions can never be intended to be the same, unless the same evidence will support both: and if they are different in their nature, no averment can reconcile them. 3dly. The plaintiff's declaration in the court below appears to be ill; for he has only declared, by way of general indebitatus assumpsit, for so much money, per præd' def. præfat' quer' prius debit', which is ill, because it does not show a consideration, or how the debt arose; which is what is always required, that the court may judge whether it is a matter proper for such an action; and though this method of declaring may in some places be warranted by custom, yet, in all such cases, the custom ought to be set forth specially, and it is not sufficient to say secundum consuetudinem generally: as in Rast. Ent. 550. where consessit solvere is held to be well, by alleging the custom to declare in that manner, otherwise it would be ill.

Raymond, Ch. J. The actions in the two courts are of such

a nature that they may be averred to be the same; for the statute 3 & 4 Anne only gives an additional remedy upon promissory notes, but does not take away the old one: and I think this note might have been given in evidence upon the indebitatus assumpsit; for the note imports the drawer's having so much money' of the other's in his hands; and though it may not, perhaps, be allowed in evidence in such case as a promissory note, without further proof of the consideration, yet it may undoubtedly be given in evidence on an indebitatus assumpsit, as a paper or writing to prove the defendant's receipt of so much money from the plaintiff. Hard's case, Salk. 23. [*146] And *as the two actions may therefore be averred to be the same, so I take the averment to be sufficient and traversable; and the averment is confined only to the first promise, which is singled out by the word quoad in the replication, and closed as to the rest. As to the objection that is made against the declaration in the inferior court, I think it of no weight; for though the declaration should be ill, yet, if the plaint be regular, it is sufficient to prevent the statute.

Reynolds and Probyn, Js. were of the same opinion.

But Fortescue, J. held strongly, that the two actions were of so different a nature, that they could not be averred to be the same. He agreed, that the variance in the sums did not prevent the averment of their being for the same cause; but he held strongly, that, since the statute, a promissory note could not be given in evidence upon an indebitatus assumpsit; and cited the case put by Hale, 1 Vent. 252. which is this: A., in consideration that B. would marry his daughter, promised to pay 1001. and in an action brought the plaintiff was barred; and in another action brought, the promise was laid to pay the 1007. at request, and it was held it could not be averred to be the same. In the other points he agreed with the rest of the judges; and said, that the form of declaring in the court below was well enough: that it had been so adjudged between Ste

phens and Greenland in this court; and that the case in 4 Leon. 105. was in point.

Judgment for the plaintiff.

*And if a man sue in chancery, and, pending the [*147] suit there, the statute of limitations attach on his demand, and his bill be afterwards dismissed,' as being a matter properly determinable at common law, Lord Chancellor King said, (a) that in such case he would take care to preserve the plaintiff's right, and would not suffer the statute to be pleaded in bar to his demand.[1]

When the action is commenced, it must be, duly continued; [2] and as the continuances are founded on the return of

(a) 1 Vern. 74.

[1] If an action be instituted under the act of the 28th of March, 1797, (limiting the period for bringing claims and prosecutions against forfeited estates) within the five years thereby limited, and it abate by the death of the defendant who dies after the five years have expired, whether another action though instituted directly after, can be maintained, Quære. Jackson ex dem. Frost vs. Horton, 3 Caines' Rep. 197.

In an action of trover, brought by an administrator for the conversion of certain negro slaves, the declaration stated, that J. F. the intestate, died possessed of a negro woman named Dinah, in 1765; that Dinah and her issue came to the possession of the Defendant, and that administration was granted to the Plaintiff on the estate of J. F, in 1812. Held; That no right of action vested in any person to sustain an action of trover for Dinah, and her descendants, before letters of administration were granted to the Plaintiff. The act of limitations could not begin to operate before such letters were taken out, and did not attach until demand and refusal. Fishwick's Admr. vs. Sewell, 4 Harr. & Johns. Rep. 393

[2] Plaintiff sued out a writ which was returned, "not found, "defendant is an inhabitant of another county." The plaintiff