Magaw v. Clark

The opinion of the Court was delivered by Sergeant, J. The decision of the court below on the defendant’s demurrer, seems tox have been right. To save the bar of the statute of limitations, the plaintiff may reply a writ issued within six years, but he must show, that it has been continued down to the time of declaring. These continuances are mere matters of form, and may be entered at any time, 1 Dall. ; 2 Dall. 378; 8 Serg. & Rawle 380; 5 Rawle 254; 2 Salk. 240, provided there be a ground laid for 'entering them Try having a return of the first writ. But it must appear, that the court has, from time to time, kept the original suit alive, and that the plaintiff is proceeding to bring the defendant into court on the suit originally commenced. 3 T. R. 662. And it is a fatal fault, that the plaintiff does not show that the original writ was returned; for if the plaintiff shows a writ and does not return it, or have a return endorsed, this will not avoid the statute of limitations. 2 L. R. 432, 883; 7 Mod. 3; 2 Salk. 420, 421; Harris v. Woolford, 6 T. R. 617; 2 Saund. 63, note 6; 2 Bos. & Pull. 157. Here the first writ was not fully returned. It was returned served'as to Shryock, but nothing said as to Clark, whether served or not. If there had been, as to Clark, a return of non est inventus, the last writ, in order to continue the suit, should have been against Clark alone. Being against both, and served on both, it must be considered as a new proceeding.- The former service on Shryock is not continued; he is served a second time, and the plaintiff’s declaration is filed in the second suit. Where the original writ is against more than one, and the service on one only, it is, perhaps, difficult under our practice, so to proceed as to keep the suit alive against both. In the United States v. Parker et al. 2 Dall. 378, it is said by Iredell, J. that the practice of Pennsylvania goes no farther, than to give the plaintiff an option, either to suspend his proceeding till the nonappearing defendant can be arrested, or to waive, on filing a declaration, all chance against him, and enforce the suit only against the defendant, who is taken on the capias; and that the plaintiff could not avail himself of another capias against the nonarrested defendant alone, without discontinuing the first. This, however, is not decided in that case; it went off on another point. Possibly the suit might be continued, if the plaintiff were not forced by the defendant to proceed: but then the subsequent Avrit should _be only seiwed on the defendant not already served; as [530] appears to have been the case in the United States v. Parker. If served on both, after a former service on one, it seems to be, to all intents and purposes, a new action, and not a continuance of the old one. Judgment affirmed.