SCHLOSSER v. LESHER
1 U.S. 411 (1789)

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U.S. Supreme Court

SCHLOSSER v. LESHER, 1 U.S. 411 (1789)

1 U.S. 411 (Dall.)

Schlosser
v.
Lesher

Court of Common Pleas, Philadelphia County

March Term, 1789

This was an action of Indebitatus Assumpsit for goods sold and delivered. The Defendant pleaded Non Assumpsit and Non Assumpsit infra sex annos: The issue on the Non Assumpsit was tried, and a verdict found for the Plaintiff. To the plea of the statute of limitations, the Plaintiff replied, a writ of summons issued on a particular day within the six years, which was returned nihil.

Whether the replication contained matter sufficient to prevent the bar of the statute of limitations, was the question; and after an able discussion by Ingersol and Sergeant, for the Plaintiff, and Levy and Todd, for the Defendant, the President stated the material circumstances and arguments, and delivered the opinion of the Court as follows:

Shippen, President.

Two points have been made in this case by the Defendant's counsel: 1st, That it does not appear that the process was issued for the same cause of action, as it is not continued to the time of filing the declaration. And, 2ndly, That if this did appear, the second action should have been brought within a reasonable time after the expiration of the six years; which, reasonable time they restrict to one year.

As to the first point, it is agreed by the counsel on both sides, and it is undoubtedly the law, that where an Original is replied to the plea of the statute of limitations, it is sufficient to shew when the writ issued, without any continuances; but where the writ is a

Page 1 U.S. 411, 412

Latitat from the King's Bench, or a Clausum fregit in the Common Pleas, the continuances must be set forth to be entered to the time of filing the bill, or declaration, in order to shew that it was for the same cause of action. This gives rise to the question, whether our writs of Capias and Summons resemble more the Original writs, or the Latitat and Clausum fregit: And, in order to solve this question, it will be necessary to consider the reason of the difference between these writs in England. The Latitat and Clausum fregit are both writs of Trespass; yet, by the course of the Courts of King's Bench and Common Pleas, the Plaintiff may ground upon them declarations in any personal actions. But, when the declaration is in Assumpsit (for instance) a writ of Trespass issued within the six years, could not be presumed to be a writ that issued in that cause, unless it was further shewn in the replication, that it was taken out with an intention to declare in that action; and, as evidence of that intention, that the continuances were entered from the time of issuing it to the filing the bill or declaration. But, in the case of an Original proper to the action, that is never necessary, because if the declaration was in Assumpsit, the original would shew it was issued in case: if the declaration was upon a bond, the original would shew it was issued in debt; and, consequently, that it was a proper and legal foundation for the action: And the continuances are not necessary to be shewn as a proof that the writ issued for the same cause of action; for, being such a writ as corresponded with the declaration, the law presumes it was for the same cause of action, unless the contrary is shewn. That this is the reason of the distinction between Originals, and the writs of Latitat and Clausum fregit, to this purpose, will appear from this; that whenever the writ which commences the action, is of such a nature as to correspond with the declaration, we find it will be sufficient to set it forth without the continuances, although it be not an original: And, on the contrary, whenever the writ does not correspond with the declaration, it will not support the replication without the continuances, although it be an original. An instance of the first kind is the attachment of privilege in the Common Pleas, which will be found by the precedents, always to specify the nature of the particular action, whether in debt, or case, which is afterwards declared upon; and hence, we find, in 1 Wils. 168. the replication shewing only the time of issuing the writ without the continuances, will be sufficient. So, in the reversed case, when a common Clausum fregit is the writ, although it be an original writ issuing out of Chancery, yet, not being adapted to the action of Assumpsit or debt, being only a foundation for the capias in the Common Pleas and intended merely to give that Court jurisdiction, it will not be presumed to be the foundation of such an action, unless the continuances are set forth from the time of issuing the writ. Hence it is evident, that it is from the disagreement [1 U.S. 411, 413]


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