Hall v Wybourn
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1741 |
| Date | 01 January 1741 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 684
IN THE COURT OF KING'S BENCH
684 TERM. PASCH. 2 W. AND M. B. R. CARTHffW. 137. hall versus wybourn. Mich. 1 Will. & Mar. B. R. Rot. 671. 3 Mod. 311, S. C. 2 Salk. 420, S. C. Plea of the Statute of Limitations where good, where not. 1 Show. 98, S. C. 1 Danv. 77, p. 10. 1 Saund. 37. 2 Saund. 66, 120, 125. 1 Sid. 305. Hutt. 109. Cro. Car. 163, 513, 535. 5 Mod. 426. 2 Mod. 71. 1 Lev. 143. 1 Sid. 465. 2 Vent. 256. 3 Lev. 21, 283, 367. 6 Mod. 240. The caae, ss. Aasumpsit for wares sold, &c. The defendant pleaded non assumpsit infra sex annos. The plaintiff replied, that he (the defendant) tempore promission. & assumptionis in narratione prsedict. superius specificat. fuit commorans & residen. in partibus ultra, mare scilicet apud Guinea extra Angliam & extra ligeantiam Domini Regis & Dominse Reginse nunc & ibidem contiuuavit usq; (such a day) &c. quo die & non antea & post promission, & assumption, prsedict. (the defendant) volutitarie rediit & retornavit in hoc regnum (viz.) apud L. in parochia & Warda prssdict. quodq; prsedicta Billa ipsiua (the plaintiff) exhibita fuit versus priefat. (the defendant) pro preedicta causa actionis in eadem Billa specificat. infra unum Annum prox. post praedict. reditum ipsius (the defendant) in Anglia scil't prasdicto Termino Sanctie Trin. &c. And upon a general demurrer to this replication, the only doubt was, whether the Statute of * Limitations was a good bar to this action, the defendant being beyond sea for all that time; and it wus argued that it should, because the plaintiff had neglected his proper remedy by not filing an original, and prosecuting the defendant to an outlawry, which, tho' it shall be reversed after his return; yet the plaintiff might have brought another original by journies accounts, and thereby take advantage of his first writ. [137] Also the plaintiff might have sued out a latitat, and continued it to the time the defendant returned, but he (the plaintiff) had not done any thing, and is therefore barred by the statute; for 'tis clear he is not within any of the savings thereof. And a case was cited in C. B. when Bridgman was Chief Justice, and it was between Sir Geo. Binion and Evelin in assumpsit for wares sold, &c. the defendant pleaded non assumpsit infra sex annos; the plaintiff replied, that from the time of the promise, &c. to such a day, the defendant was a member of...
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