BOOK II.

PROCEEDINGS IN ACTIONS GENERALLY.

CHAPTER I.

Limitation of Action.

What.] The time limited for bringing an action, after the cause of action has accrued, is, in assumpsit, six years; 21 Jac. 1, c. 16, s. 3; in debt on contract without specialty, six years; Id.; in debt on specialty, and debt or scire facias on recognizance, twenty years; 3 & 4 W. 4, c. 42, s. 3; in debt on award, where the submission is not by specialty, debt for copyhold fines, debt for escape, and debt for money levied under a fi. fa. six years; ld.; in covenant, twenty years; Id.; in actions for penalties, &c. by parties grieved, two years; Id.; in actions upon penal statutes for penalties or forfeitures, one year, if the action be brought by a subject, two years, if brought in the name of the Queen only; 31 El. c. 4, s. 5; in trespass quare clausum fregit, and trespass for taking goods, six years; 21 Jac. 1, c. 16, s. 3.; in trespass for assault, battery, or false imprisonment, four years; Id.; in actions on the case, six years, except in an action for verbal slander, (where the words are actionable without special damage, Arch. Pl. & Ev. 31,) four years; Id.; in detinue and trover, six years; Id.; in replevin, six years, Id.; in ejectment, twenty years; 3 & 4 W. 4, c. 27, s. 2, &c.; in actions for arrears of rent, or of interest on money chargeable on or payable out of land, six years; Id. s. 42; in suits by the Crown, sixty years. 9 G. 3, c. 16, s. 1, 10. See upon this subject, Arch. Pl. & Ev. 21–34.

The time thus limited begins to run, from the accruing of the cause of action: in actions on contracts, from the time of the breach, and not from the time the plaintiff first sustained special damage from it, Battley v. Faulkner, 3 B. & A. 288, or first had a knowledge of it; Granger v. George, 5 B. & C. 149; in an action against an attorney for negligence, &c. from the time of the negligence, and not merely from the time the client knows of, or sustains damage from it; Howell

VOL. I.

v. Young, 5 B. & C. 259. Brown v. Howard, 2 Brod. & B. 73. Short v. M'Carthy, 3 B. & A. 626. Whitehead v. Howard, 2 Brod. & B. 372; in an action for money lent, &c. payable at a particular time, from the time it is payable; Wittershiem v. Countess of Carlisle, 1 H. El. 631; in an action on a promissory note payable at a particular time, from the time it is payable, Id.; and where a note is payable by instalments, some of the instalments may be barred by the statute, others not; see Gray v. Pindar, 2 B. & P. 427; in an action on a bill of exchange payable after sight, from the time of presentment; Holmes v. Kerrison, 2 Taunt. 323; but in the case of a note payable on demand, from the date of the note, and not from the time of the demand; Christie v. Fonswick, 1 Selw. N. P. 136, 361; in trover, from the time of the conversion, and not from the time the plaintiff became acquainted with it; Granger v. George, 5 B. & C. 149; in actions for penalties for usury, from the time the usurious interest is received. See Lloyd v. Williams, 3 Wils. 250. Wade v. Wilson, 1 East, 195. Scurry v. Freeman, 2 B. & P. 381. As to the effect of the plaintiff's being an infant, feme covert, non compos, imprisoned, or beyond seas, in preventing the time limited from running, see Arch. Pl. & Ev. 32; and as to the effect of there being mutual accounts subsisting between the parties, see Id. 27; and as to the effect of a new promise or acknowledgment, see Id. 27-29.

Process sued out, &c. to save the statute.] In order to prevent the statute from being a bar to the action, the action must be commenced, that is to say, a writ must be sued out, before the time limited for that purpose has expired. Where it was sued out before the expiration of the time, but on account of some alteration in the writ it was obliged to be resealed, and the resealing was after the time expired: the court held it to be sufficient, as the resealing did not amount to a reissuing of the writ. Braithwaite & Ld. Montford, 2 Cr. & M. 408. In all cases where such writ was not sued out before the 2nd November, 1832, the manner of doing it, and of continuing it down to the time when the defendant shall be actually served or arrested, is now regulated by the uniformity of process act, 2 W. 4, c. 39; by the 10th section of which it is provided, "that no first writ shall be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited,”

1: "Unless the defendant shall be arrested thereon or served therewith,"

2: Or unless "proceedings to or toward outlawry shall be had thereupon ;"

3: Or "unless such writ, and every writ (if any) in concontinuation of a preceding writ, shall be returned non est in

ventus, and entered of record within one calendar month next after the expiration thereof, including the day of such expiration:" "the return to be made, in bailable process, by the sheriff or other officer to whom the writ shall be directed, or his successor in office; and in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be."

And, in this latter case, unless every writ, issued in continuation of a preceding writ, shall be issued within one calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon or subscribed thereto, specifying the day of the date of the first writ."

The writ in this case of course is a writ of summons. Sue out the writ as in ordinary cases; and at the end of four months indorse a return of non est inventus upon it, and having got a roll, enter it upon it with an award of an alias; see the form of the entry, in the Appendix; take the roll to the Master's office, and docket the entry; and then file the writ and return. It is not necessary to make any attempt to serve it. Williams v. Roberts, 1 Cr. M. & R. 676. Then sue out an alias, which need not be tested on the day the former writ was returned, see Nicholson v. Leman, 2 Dowl. 296, but must of course bear teste on the day on which it is sued out; and at the end of four months, indorse a return of non est inventus, upon it, have the return entered on the roll, with an award of a pluries, and file the writ and return; and so on, until the defendant is actually served, and you proceed in the action.

Where a plaintiff applied for leave to serve the agent of the defendant with a writ of summons, in order to save the statute of limitations, as the defendant himself, being abroad and out of the jurisdiction of the court, could not be personally served Patteson, J. refused it, saying there was no precedent for such a motion, and that the only regular mode of proceeding in such a case was under this statute. Frith v. Ld. Donegal, 2 Dowl. 527. And on the other hand, there is no mode of taking advantage of the statute of limitations, but by pleading it; and therefore where a defendant moved to set aside a capias, and that he should be discharged out of custody, on the ground of the debt being barred by the statute of limitations, as appeared from the plaintiff's own particulars, Williams, J., refused the motion. Potter v. Macdonel,

3 Dowl. 583.

If process to save the statute of limitations had already been sued out and returned, entered and filed, before the passing of the above statute, 2 W. 4, c. 39, (2 Nov. 1832), the case is not within the statute; but the plaintiff must proceed as if that statute had never passed, that is to say, as soon as the

defendant can be served or arrested, the plaintiff must sue out a writ of the same nature as the writ which is filed, namely a bill of Middlesex, latitat, capias by continuance, quo minus, &c. and the officer who now signs the writ of summons will sign it, Finnie v. Montague, 5 B. & Ad. 877, and the sealer of the If executed, writs will seal it; it may then be executed. continuances should then be entered on the roll, by vicecomes non misit breve, from the award of the alias, down to the See the form writ last sued out, including the return to it. A bill of Middlesex has been of the entry in the Appendix. holden to be a good continuance of a latitat; French v. Mawood, 2 Dowl. 565; and a bailable latitat, a good continuance of a non-bailable bill of Middlesex; Plummer v. Woodburne, 4 B. & C. 625; and a distringas, a good continuance of a bill and summons against a member of Parliament. Taylor v. Duncombe, 2 Dowl. 401. But an attachment of privilege is Smith v. Bower, 3 T. no continuance of a bill of Middlesex. R. 662. And where the last writ varied from the first in the name of the defendant, it was holden to be no continuance of But a mere inthe first writ. Corbett v. Bates, 3 T. R. 660. formality in the first writ, Leadbeter v. Markland, 2 W. Bl. 1131. Beardmore v. Rattenbury, 5 B. & A. 452, or its being irregularly sued out, Darwin v. Lincoln, 5 B. & A. 444, will As to the return not prevent its being a bar to the statute. of the first writ, see Stanway v. Perry. 2 B. & P. 157. Taylor v. Hipkins, 5 B. & A. 489.

CHAPTER II.

Process and other proceedings in the action, to declaration.

SECTION 1.

Writ of Summons.

In what cases.] By stat. 2 W. 4, c. 39, process in all personal actions commenced in any of the courts of law at Westminster, where it is not intended to proceed against a member of parliament according to the provisions contained in stat. 6 Geo. 4, c. 16, "shall, whether the action be brought by or against any person entitled to the privilege of peerage, or of parliament, or of the court in which such action shall be brought, or of any other court, or to any other privilege, or by or against any other person, be according to the form contained in the schedule to this act annexed, marked No. 1; and which pro

cess may issue from either of the said courts, and shall be called a writ of summons." See the form in the Appendix. And great care must be taken that the form used be correct, and be filled up correctly. See Smith v. Crump, 1 Dowl. 519. Where the copy served omitted the memorandum, required in the form given by the statute to be subscribed to the writ, that it must be served within four calendar months: the court set it aside, with costs. Patteson v. Busby, 5 Mees. & W. 95. Law. J. 16 ex. So, a writ commencing "William the fourth," instead of "Victoria," was holden irregular, and was set aside with costs. Drury & Davenport, 3 Mees. & W. 45.

It may be necessary to mention, that there is no objection to suing out several writs, and have them running at the same time, and bearing teste on the same day. Angus v. Coppard et al. 3 Mees. & W. 57. But it will be in the discretion of the masters whether more than one writ shall be allowed on taxation of costs, except in the case of several defendants living in different counties.

are.

How directed.] The writ is directed to the defendant himself, and not to the sheriff, as the capias and other writs usually In the form given in the statute, the direction is: "To C. D., of, &c. in the county of ;" and by stat. 2 W. 4, c. 39, s. 2, "in every such writ and copy thereof, the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be or shall be supposed to be, shall be mentioned." Where the defendant was described as of "Tufton Street, in the county of Middlesex," without stating any parish, Littledale, J. held it to be sufficient. Cooper v. Wheale, 1 Har. & W. 525, 4 Dowl. 281. Where the defendant was described as residing in B. street, in the county of York, and he actually resided in C. street in Hull: but as B. street was a continuation of C. street, and the defendant lived within twenty yards of the boundary line between Yorkshire and Hull, Littledale, J. held it to be sufficient; under the circumstances, his residence might be "supposed" to be in Yorkshire, within the meaning of the act. Jelks v. Fry, 3 Dowl. 37. Where he was described as of Newcastle upon Tyne, in the county of Northumberland, and it appeared that although the town was a county of itself, yet that some part which had been added to it by the Boundary act, was within Northumberland, the court held it to be sufficient. Rippon v. Dawson, 5 Bing. N. C. 206, 8 Law. 102 cp. Where the writ described the defendant as of Symond's Inn, Chancery Lane, in the city of London, and upon a motion to set aside the writ, on an affidavit, that the deponent had been informed and verily believed that Symond's Inn was in Middlesex: the court held that swearing merely to information and belief, was not sufficient in such a case to satisfy them that the description was wrong;