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But since this case in Styles, and before that in Wilson, the rule has been otherwise.

In Kinsey v. Hayward,(a) Holt, Ch. J. said, Suppose you had pleaded a right, and a proper original, in this manner, as you have done here, you have not shown that it ever was returned; and till return there is no day in court; and there is no continuance shown to have been entered: and to prevent the statute it is not enough to take out a writ, even a proper one, but all the continuances, though for six or seven years, must be entered, and so shown to the court; for if there be an omission of one continuance, it spoils all. And for the discontinuance only was the judgment in the common pleas reversed, which judgment was affirmed in parliament.

In Brown v. Babbington, (b) where the principal objection was to the writ being properly a commencement of [*156] *the suit within time, Holt, Ch. J. said, that there was a fatal fault, viz. that the plaintiff did not show that the original was ever returned. Now, if he shows a writ and does not return it, that will not avoid the statute of limitations.

And in Karver v. James, (c) because the first writ (which was a writ of privilege) was not returned, all the continuances were void.

Where the action was commenced by original, and abated without the default of the plaintiff, he might have another writ by journeys accounts; but this is never now resorted to to save the action, such a case being always within the equitable construction of the fourth section of this statute.

(a) Lutw. 460. (b) Lá. Raym. 881.

(c) Willes, 255.

Indebitatus assumpsit(a) for an assumpsit to the testatrix. The defendant pleaded, non assumpsit infra sex annos. The plaintiff replied, that Charles Elstob was executor to Jane Elstob, durante minoritate of the plaintiff, and that he sued an action within six years, &c. against the defendant; and that pending the action, the plaintiff came of age, and brought this action by journeys accounts. The defendant demurred. And after sevcral arguments at bar, it was resolved by the court-`.

1st. That if Charles Elstob had been administrátor to Jane Elstob, durante minoritate of the plaintiff, and had brought an action, pending which the plaintiff had come

*of age; he could not have continued that by journeys [157] accounts, because he would not have come in in privity to Charles, but he had claimed immediately from the ordinary; and in such case the statute of limitations would have been a bar to the plaintiff, as it was adjuged in a case in the common pleas about four years before; where an administrator brought an action upon the brink of the six years, and pending that died; upon which the next administrator de bonis non brought another action, in which the statute of limitations being pleaded, the plaintiff, replied, and showed all the special matter, how the former administrator brought an action, &c. and it was adjudged that that could not aid him, because he did not come in in privity to the former administrator.

2dly. That this action was recently enough brought, for it appeared that it was brought within seven days after the plaintiff came of age. Heretofore they used to allow half a year to bring an action by journeys accounts, but now that is held to be too long, and therefore they allow but thirty days.

3dly. That this executorship being but an office, both persons make but one executor, and therefore the plaintiff was privy to Charles, and to the writ sued by him. See Owen, 134. Co. Entr. 923. Hob. 265. 1 Roll. Abr. 921.

(a) Ld. Raym. 283.

11 Vin. 227. pl. 15.

And by Treby, Ch. J. If Charles had obtained judgment, the new plaintiff, after his being of age, might have sued execution. But it was resolved, that if A. makes B. his ex[*158] ecutor, adding, that if he does such an *act, C. shall be his executor; if B. bring an action, and then does the act, C. cannot have an action by journeys accounts, &c. because B. has determined his office by his own act; and though he was once sole and perfect executor of himself, yet, by the breach of the condition, he is now as if he had never been executor, and C. is not privy to him.

But in a subsequent case, wherein the law respecting the maintaining of writs by journeys accounts was much discussed, a different construction was held. The question was, as to the propriety of the first writ, and if that writ could be maintained. by journeys accounts. The common pleas held, that the first writ being shown to be sued out, it should be intended to be returned and continued. But the court of king's bench, on error brought, reversed the judgment for want of continuances to the first writ; and the judgment of the king's bench was affirmed in parliament, [1]

The case was thus: The plaintiff(a) declared as administratrix to her husband, against the defendant, as executor to Heyward, in indebitatus assumpsit. The defendant pleaded, non assumpsit infra sex annos. The plaintiff replied, that her husband sued out a writ of clausum fregit returnable in this court, in which he intended to declare in assumpsit for this debt against Heyward; that Heyward died, and her husband sued another writ against the defendant; that then her husband died, and she

(a) Ld. Raym. 435.

[1] At common law, uo action could be renewed by journey's accounts, in a case of voluntary abandonment of suit. Richards & Al. Assignees, &c. vs. The Maryland Insurance Company, & Cranch's Rep. 84.

being administratrix to her husband, sued this writ, &c. The defendant demurred: and the court gave their opin

ions *in solemn arguments on the bench: but the ar- [*159] gument of the chief justice only is reported.

Treby, Ch. J. 1st. In this case the writ is not maintainable by journeys accounts; for a writ by journeys accounts is maintainable only by the same plaintiffs, or one of them at least, who sued out the first writ: but where the plaintiff dies, a writ by journeys accounts cannot be brought by his executor, &c. And this appears by the terms of the law, Fitzherbert and Stratham, in title Journeys Accounts-If the defendant dies, there the plaintiff may pursue a writ by journeys accounts against his executors, &c. or if there are two plaintiffs, and one of them dies, the survivor may have such a writ, he being the same person who sued the former writ; but a writ by journeys accounts is maintainable in no case but by the same plaintiffs, er some of them, who were plaintiffs in the former writ; but in no case shall be brought by an executor, or heir, &c. Rast. 107, 108.417. 3 Cro. 174. Bro. Journeys Accounts. 23 Thelsal. 407. b. 1 Vent. 235. And without doubt, there have been several occasions offered to bring such a writ by executors, &c. which would have been brought, if the law would have allowed it. And the case of Elstob v. Thorowgood, adjudged in this court, Mich. 9 Wm. III. A general executor brought a writ by journeys accounts upon a writ brought by the executor durante minoritate, and adjudged that the said writ was well brought. And he said, that he was then of the same opinion; but he never was ashamed to retract his opinion, when he is convinced upon better reason; and for this reason he declared, that he. thought the said judgment was not maintainable upon the reasons upon which it was given, viz. that an executor may have a writ *by journeys accounts upon a writ [*160] abated, brought by the executor minoritate; but the judgment, notwithstanding, well given upon other reason. But in no case can a writ of journeys accounts be, but by the same plaintiffs, or some of them, who were plaintiffs in the former

writ. And to say that the general executor, and the executor durante minoritate, were as one person in the office, is to strain the point too far; for it must be the same plaintiff, not only by representation, but by name; for the second writ is a continuance of the first; which cannot be but by the same person, not only in representation, or in respect of their office, but strictly and truly the same person.

2dly. In this case the writ cannot be by journeys accounts, because the former writ ought to be continuing in court and returned. Fitzh. Journeys Accounts. 22 Rast. Entr. 417. 11 H. VI. c. 34. For the writ is not in court before it is returned; but, in this case, it does not appear that the first writ was returned.

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3dly. In this case the first writ was a clausum fregit, which writ is not maintainable, nor can be continued, against executors; and the second writ ought always to be the same as the first; and usually they were entered upon the same roll, and both together made only one record.

4thly. In this case there is nothing of journeys accounts before us, for the second writ is not said to be brought per dietas computatus, as all the precedents are; though the meaning of

the said words he did not well apprehend. The word [*161] dieta signifies a day's journey, and the best *account of

the word is given by Selden; that the chancery being a moveable court, and following the king's court, and the writs being to be purchased out of the said court, the party who purchased the second writ ought to have applied to the king's court as hastily (that he might obtain the second writ) as the distance of the place would allow, accounting twenty miles for every day's journey; and for this reason he was to show in the second writ that he had purchased his second writ as hastily as he could, accounting the day's journeys he had to the king's court. It has been urged by the counsel, that the death of the plaintiff being the act of God, shall not do a prejudice to any;

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