¶1As this action was brought to recover money lost at the game of billiards, it was indispensably necessary that the writ (if there was one) should have appeared in the record, in order to show that the action was instituted within the time limited by the act of assembly which gives the right of recovery in such cases. But as the declaration states the money to have been lost on the first day of May, 1799, and it appears by the record that the declaration was filed at the rules on the 17th day of October, 1801, the presumption is so strong that the right of action was lost before the commencement of the suit, that nothing but the production of the writ proving the contrary can destroy it. The proceedings, therefore; being radically defective, supersedes the necessity of considering any but the first and third errors which have been assigned, as those of themselves are sufficient to produce a reversal of the judgment.
¶2Therefore, it is considered by the court, that the judgment aforesaid be reversed, annulled and set aside, and that the plaintiff *287recover against the said defendant his costs by him about his suit in this behalf expended, which is ordered to be certified to the Nelson circuit court.