pass for the plaintiff, and upon matter alleged in arrest of judg ment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill; or if any the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry; that in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after."

The Statute 1793, c. 75, §2. Which enables a party whose action has failed through unavoidable accident, informality, &c. to commence a new action, which but for this Statute would have been barred by the Statute of Limitations, does not apply to actions of slander or other actions arising ex delicto. Cook vs. Darling, 2 Picker. Rep. 605.

If narr. in ejectment is served within six months after the decision of a caveat, though not entered on the docket, it will take it out of the 11th section of the act of 3d April, 1792, [Pennsylvania,] Lessee of Nicholson vs. Wallace, 2 Yeates' Rep. 416.

The statute limiting suits for the recovery of disallowed claims against the solvent estates of deceased persons, (tit. 32. c. 1. §18.) to six months after notice that the claim was disallowed, "is a positive

bar, not removeable like other Statutes of Limitation, by a new "promise or a recognition of a subsisting debt; because it is not "bottomed on a presumption that the debt is paid-avoidable by the "slightest acknowledgment." The commencement of a suit takes place at the service of the writ in that suit. Therefore, where an action of debt on a record of the County Court, shewing an adjustment and liquidation of a conservators account, made, on the application of his administrator, after his death, and finding a certain balance due from his estate, was brought within six months af er notice of the disallowance of a claim for such balance, in which final judgment was rendered against the paintiff; it was Held, in a subsequent action of account for the recovery of the same balance, brought after the expiration of the six months, that such action was barred by the Statute. And PETERS, J. in delivering the Opinion of the Court, said; But the actions are not for the same matter, cause and thing,' as claimed by the plaintiff's counsel. One is debt; the other, account: and they have no more effect on each other, than trover and ejectment for the same land." Spalding vs, Butts & Al. (In Error.) 6 Conn. Rep. 28. 30.

The plaintiff declared in the common pleas(a) in assumpsit, supposing that the defendant, 16 Jac. I. at Bury, in Suffolk, promised to pay, &c.

*After verdict and judgment upon non assumpsit [*164] pleaded and found for the plaintiff, the defendant brought error; and upon dimunition alleged, the original was certified to be in Hilary term, 4 Car. I. upon which the plaintiff in the writ of error pleaded the statute of limitations; and that the action, being upon a promise in 16 Jac. I., and not brought within six years after the promise, nor within. three years after the statute, was not maintainable. The defendant pleaded that he, 2 Car. I., which was within three years of the statute, brought a writ original of assumpsit, supposed to be made in Kent, against the defendant, now plaintiff in the writ of error, wherein he was outlawed; but in 3 Car. I. the outlawry in the common pleas was declared void, and he discharged; and that within a year after he brought this action, and supposed the promises made at Bury to his damages of 6001.; and that, in the former action, the assumpsit was alleged to be made in Kent to his damage of 5001,; and he averred that it was one and the same promise and cause of action. Upon this plea the plain

tiff in the writ of error demurred.

Twisden showed the cause to be, for that this new action varied in the county from the assumpsit, and in the damages alleged, and so could not be intended one and the same cause of action, nor to be a new suit begun for the same matter.

Also, Croke, J. conceived, that forasmuch as this outlawry was not reversed by error, but avoided by plea, the first original was not determined, but he might have proceeded thereupon; and then, to begin a new original, and in [165] another county, is not according to the statute of lim

itations, nor within the intent of the statute.

(a) Cro. Car. 294.

But Richardson, Jones, and Berkley held, that this variance of the county and damages was not material to the action, being transitory, and averred to be for one and the same cause: and although the outlawry is not reversed by a writ of error, but avoided by plea, it is all one within the intent of the statute; for the statute is not where the outlawry is reversed by error, but where the outlawry is reversed, so it is by any means. Therefore, upon their three opinions, a rule was given that judgment should be affirmed.

So, in trespass for taking and detaining plaintiff's beasts till a fine was paid,(a) and the action laid in Sussex; the defendant pleaded that the cause of action did not accrue within six years before suing of the writ; and the plaintiff replied that at another time he brought an original in battery in London, intending, when the defendant had appeared, to have declared for this trespass; and that the defendant was outlawed in London; and that, within such a time after the reversal of the outlawry, he declared here: to which the defendant demurred; and it was insisted, that the original being laid in London, the plaintiff could not, in this action, declare in another county, though the cause of action be transitory. But, upon information by the prothonotaries that the course of the court was, that although the original be laid in London for expediting the outlawry, yet, when the defendant comes in, the plaintiff may declare against him in another county, be the action local or [*166] transitory: and the statute of limitations giving to plaintiffs generally a power to commence a new suit within the year after the outlawry reversed; that so he may do in that case to warrant his declaration within the course of the court. Judgment was given for the plaintiff.

But where, to an action on the case by an executrix, (b) for money lent by the testator, &c. the defendant pleaded the statute of limitations; and the plaintiff replied, that the testator

filed a special original in trespass upon the case, against the defendant, setting forth the whole declaration; and that, pendente placito, her husband died. And And upon demurrer, the question was, whether this action, brought by the testator by original, be within the equity of this section of the statute of limitations?

In this case the action was brought by original by the testator, but he died before the defendant could be outlawed; and it was held that his executrix could not maintain this action within the year; but it was a hard case, and the statute had not provided for it.

This has, however, been since overruled: and in cases wherein the progress of the action has been arrested by the death of either of the parties to the suit, a reasonable time has been allowed, within which a fresh action may be brought.[1]

In an action(a) wherein the plaintiff declared as administratrix against the plaintiff as executor, on a promise to the intestate by the testator, the defendant pleaded the statute of limitations. The administratrix replied, that the [*167] intestate sued a writ of clausum fregit, returnable in the common pleas, in which he intended to declare in assumpsit against the defendant's testator; that the testator died, and that the intestate took out another writ against the defendant; that intestate

(a) Ld. Raym. 434.

[1] Upon the death of an assignee under the Bankrupt Law of the United States, the right of action for a debt due to the bankrupt, vested in the executor of the assignee. If an executor do not cause himself to be made party to a suit brought in the life time and in the name, of the Testator, and pending at his death, it is to be considered as a voluntary abandonment of the action, so as to exclude the executor from the equity of the exceptions to the Statute of Limitations. Richards & Al. Assignees, &c. vs. The Maryland Insurance Company, 8 Cranch's Rep. 84.

died, and plaintiff, being administratrix, sued out this writ; to' which was a demurrer: and the question was, if such writ could be maintained by journeys accounts?

Treby, Ch. J. in giving judgment, said, That which is said by Coke, 6 Rep. 10. b. Spencer's case, is law; that an executor, &c. shall not have a writ by journeys accounts. But though this writ is not good to continue the former, and by such means to avoid the statute of limitations, yet, the plaintiff here ought to recover notwithstanding the said statute pleaded. For the statute is, that actions upon the case, &c. shall be sued within the six years, &c. and for this reason, where an action is sued within the six years, that seems to be excepted out of the words of the statute; and that if an action is sued within the said time, the party is out of the proviso of the act, and at liberty to prosecute the said action, or to sue another action, at any time not restrained or limited by the statute. And in this case an action was commenced within the six years, though the former was a writ of clausum fregit, and this is an assumpsit, yet, by the course of the court, it is the same action; the clausum fregit being a general writ, upon which a man may declare in any other personal action, as a latitat in the king's bench. And therefore the statute is satisfied in this case by the suing of the clausum

fregit, and the plaintiff thereby set at liberty out of the [*168] *restraint of the said statute. And if a copyholder

has a license to make a lease, his lessee may make an under lease; for, by the license, it is exempt from the custom of the manor. 1 Rol. Abr. 508. pl. 14. 6 Vin. 120. pl. 5. But though, by the suing of an action, the party seems to be set at liberty, without any restraint of time in which he ought to prosecute his action, or to bring a new action, yet, by the reason of the statute, he ought to be restrained to some reasonable time for the statute being made for settling some time for the bringing of actions, it ought to be expounded according to such intent; and where the words are silent, a reasonable time by construction ought to be made. But it is difficult, in this case, to settle in what time an action shall be brought, where another