
    
      Platt v. Platt.
    
   BENSON, J.

The pleadings in this cause are, nary„ entitled of October term, 1794, in assumpsit, charged, 1st September, 1794, plea in abatement, that on the 28th January, 1793, the defendant was taken and detained in prison under the custody of the judges and assistant justices of the court of common pleas for the county of West- Chester, by virtue of a plaint levied against him in that court at the suit of the plaintiff : that the plaintiff declared against the defendant, on that plaint, and the plea set forth the declaration at large, which is similar to the declaration in this court, (with this difference only, that in the. latter there is an addition of a count on an insimul computasset, and in the former the assumpsit is charged on the 1st January, 1798 ;) that the defendant sued out of this court a habeas corpus for. removing the cause, tested the 9th, and allowed the 27th August, 1794, and returnable the ensuing October term; that the habeas corpus was returned in that term : and setting forth the return which is in the usual form ; that thereupon the defendant was delivered to bail in this court at the suit of the plaintiff in the plea aforesaid, whereupon the plaintiff exhibited the bill aforesaid in this court against the defendant in the plea aforesaid; .that inasmuch as it appears by the bill here, that the causes of action specified in the bill, had not accrued before the term of the caption of the defendant by virtue of the plaint, nor before the time when the plaintiff declared on the plaint, nor before the day of the test, nor before the day of the allowance of the habeas corpus, the plea therefore concludes by praying judgment of the bill, and that it may be quashed; demurrer to the plea, and .joinder in demurrer.

It is regularly true that if the plaintiff will him- “ self discover to the court any thing, whereby it ‘f may appear that he had no cause of action when he “ commenced it, his writ shall abate; of his own 4‘ showing, it is against him.” Hob. 199. Or as it is expressed by an ancient law-writer, “ The writ also 66 falls, if at the time of issuing there was no cause for “ issuing, because, at the time of dating and issuing, “ the demandant had no competent action or cause “ for demanding.” Bract. 414. as cited in TheloaVs Digest. Lib. -4. ch. 5. par. 3. The question therefore between the parties in the present case is, whether the defendant shall, to that intent, where the suit hath been removed by habeas corpus, allege any act of the plaintiff, or other proceedings, in the court below, or the test, or the allowance, of the habeas corpus-, as the commencement of the suit ? This question de - pends on another, viz. Whether, where a suit is removed by habeas corpus, it does not then become a new suit in the court above, or whether it is not to be considered as the same suit, commenced in the court below, and continued in the court above ? With respect to this question, it is clearly laid down, “ that “ the record itself is never removed by habeas corpus, “ but remains below, and therefore the plaintiff must “ here begin de nova,'” Salk. 352. and must not only “ declare de nova,” but in the common bench, must “ bring a new original.” It is part of the condition of the recognizance of bail on a habeas corpus in that court, “ That the defendant shall appear to a new “ original to be filed.” Inst. Cler. 409. Inst. Legal. 237. Imp. Pract. Com. Pl. 641. And I should suppose, if it is now necessary to comply with mere formality or fiction, that where the proceedings are by bill, as distinguished from where they are by writ, that the bill “ on which the process used to issue “ against the defendant,” which is, “to warrant the “ declaration,” and which, as analogous to the original writ, is said to be “ the ground-work of the cause,” ought to be filed de nova. Boote's Suit at Law, 14. 17. 34. And although where a suit hath been commenced within the requisite period, and removed by habeas corpus, and the period should expire before the declaration de nova filed, and thereupon the defendant plead the statute of limitations, “ the plaintiff may re- “ ply the suit below,” Salk. 424. and in like manner where a suit is commenced within the period, and abated by the death of the plaintiff before judgment, the period being then expired, “ this shall not prevent his executors;” yet, the reason is not, that inthe former case the suit above is a continuance of the suit commenced below, or that in the latter case, the suit by the executor is a continuance of the suit commenced by the testator, but merely to show, that the plaintiff “ had rightfully and legally pursued his right.”— And I should suppose, for the same reason, that where priority of right attaches on bringing a suit, and a suit should be brought and be removed by habeas corpus, and in the intermediate time, between bringing the suit in the court below and filing the declaration in the court above, another person should bring a suit against the defendant for the same cause, and the defendant should plead that matter with intent to oust the plaintiff of his priority, that the plaintiff might reply, the suit commenced in the court below. The truth is, that whenever right or justice may require it, a suit, removed by habeas corpus, may, to certain intents, be made to relate to the suit below, but not to it as to the same suit technically continued, or on the proceedings in which any of those in the court above, are founded, in the sense that the count, narration, or declaration is said to be founded on the writ, or bill, or plaint, whichever may be the original process.

There is, possibly, another question between the present parties, viz. whether the rule is not to be taken strictly, that the defendant cannot avail himself of it as pleadable, unless the plaintiff himself discover that he had no cause of action when he commenced it ? Hob. ut supra. In which, however, I should understand to be comprehended, as well what the plaintiff must, in the first instance, put on the record, as what he is bound to discover on oyer prayed by the defendant, and also whatever the defendant may elect to allege himself instead of praying oyer of it from the plaintiff, but of which, if it had been prayed, the plaintiff was bound to give oyer. Thel. Dig. lib. 10. ch. 4. Brown. Lat. red. 1. pi. 3. Id. 2. pl. 6. Form. bene. plac. 3. If the law is. so, and I am inclined to think it is, then it is fatal to the defendant’s plea; because, (and which it is to be remarked, is decisive, that the process is not continued from the one court to the other, there being no such thing, where a cause hath been removed by habeas corpus as oyer in the suit in the court above of any of the matters in the suit in the court below,) the defendant hath no legal means to make the matter of variance (for of that nature is the matter of the plea in this case,) appear on the record. Theloal's Dig. lib. 9. chap. 5.

I wish, however, to be considered, as not having come to a decided judgment, on this point; my opinion against the defendant, is grounded, wholly on what I have previously advanced.

I think the plea is insufficient, and therefore, that the defendant answer over.  