and, to be sure, such an averment could not be allowed, because to that purpose the fact is not relevant; for, by law, a latitat may issue in the vacation, tested the last day of the precedent term. Authorities, that a latitat is void if it bears teste out of term (which is the case of Buckbridge v. Wright,)(a) prove nothing to the present purpose, because it is equally certain that it may be purchased out of term, provided the teste be formal. The case of Jones, an Attorney, v. Burnet,(b) upon a writ of privilege, is not applicable. The court there held the replication to be insufficient, but abated the writ; and the ground they went upon was, that it appeared, on the plaintiff's own showing, that his writ bore date before his cause of action, though, in fact, taken out after. writ in the nature of an original, and bear date before the cause of action. Now, the direct contrary is the established law in the case of a latitat; for it may bear date before, if really prosecuted after, the cause of action.

But they considered that therefore abateable, if it

The case of Aldworth v. Hutchinson(c) has been much relied upon, though it was never argued again. Judgment nisi is said to have been given for the plaintiff, and no cause shown: but no judgment is entered on the roll. And there might be a very good reason to give judgment for the plaintiff, upon the true construction of the covenant. The words might very fairly take in all process as of that term; especially a judicial writ, which must proceed upon a ground prior to the end of the term. The *reporter supposing the time of suing [*131] out the scire facias to be material, passes a strong cen

sure upon the judgment, if it stopped the party from showing the truth: for he says, "If such be the ground then, in judgment of law, a covenant may be broken when in reality and truth, it never was broken: quod nota." And it would be well worth noting, indeed, for no proposition could be more unjust.

Upon the argument in this cause it was said, that Lord Hard

(a) Hil. 12 G. J. B. R.

(b) P. 5 G. II. C. B.

(c) 1 Lutw. 329.

wicke, in the case of Hoare v. Yates, (a) was of opinion against the averment; and that Mr. J. Lee came over to that opinion; and that his lordship was ready to have given judgment, when he was told the parties had agreed.

I cannot form an opinion upon a point of law which would not be shaken by so great an authority: but his lordship has been so good as to let me have his notes of the two arguments in that case before him. There is no notice taken, in his lordship's own notes, of what might fall from himself: and it does not appear, from his lordship's notes of what Mr. Justice Lee said, that he changed his opinion. His lordship says, he believes he had not formed a conclusive judgment in his own mind; and that he certainly had made no preparation towards delivering it in court. And he has been pleased to tell me, that he inclined to the opinions of Mr. Justice Page and Mr. Justice Lee (who were for admitting the averment in the defendant's rejoinder) against the opinion of Mr. Justice Probyn, who thought it could

not be admitted by law. And we are all, most clearly [132] of opinion, that the averment in the defendant's rejoinder ought by law to be admitted; consequently, the demurrer must be over-ruled, and judgment given for the defendant.

And in the common pleas,(b) in an action of assumpsit for goods sold, to the statute pleaded, the plaintiff replied, that before the six years were out he brought an original in trespass against the defendant, with the intent to declare against him in assumpsit, according to the custom of the court. The defendant. said, that there was no such record; and the plaintiff produced an original in trespass, brought within the time, against the defendant and two others; and it was in trespass and assault in London and it was moved, that this record did not make good the replication, for it was against three, and it should have been in a clausum fregit; for that was said to be the course of

the court to declare in any thing upon such a writ. No judgment was given in this case: but as to the suing of an original in trespass and assault, contrary to the custom of the court, the prothonotary informed the court, that the original being in London, the cursitor would not make a clausum fregit into London; and therefore, though in other counties that was to be, yet trespass and assault would do in this case; and such was the constant practice; and that it was not material though others were joined in the writ with the defendant; but the court doubted of the practice.

And in the subsequent case of Every v. Carter,(a) wherein the plaintiff declared on several promises, to which the statute of limitations was pleaded, the plaintiff replied an ori

ginal, prosecuted against the defendant *before six [133] years were elapsed. The defendant craved oyer of the writ, which was in trespass quare clausum fregit; and denied that the writ made good the writ mentioned in the replication. To this the plaintiff demurred; and the court agreed that it was the practice then settled in the court, to take out such an original in a clausum fregit, and to declare in assumpsit, or the like.

But(b) where the assumpsit was laid in one county, and the replication to the plea of the statute of limitations showed a writ of clausum fregit brought within six years in another, the judgment of the common pleas, that this writ had avoided the statute of limitations, was reversed on error; and Holt, Ch. J. said, though such a writ of clausum fregit might be a sufficient process to bring in the party, and compel an appearance, yet it could not be an original to avoid the statute of limitations: that way of proceeding was to eradicate all the principles of law.

So, where a clausum fregit(c) in Dorsetshire was replied, to

(a) 2 Vent, 259.

(b) Ld. Raym. 553

(c) 12 Mod. 570.

avoid the statute of limitations, in an action of assumpsit in London, in which the court of common pleas gave judgment on demurrer for the plaintiff, which was afterwards reversed in error in the king's bench, because the continuances of the writ did not appear.

Holt, Ch. J. in giving judgment, said, You say that it is the course of the court, time out of mind. The question is, whether that must be granted; or, if it be contradicted, how it shall

be tried? It cannot be by jury; therefore alleging or [*134] not alleging is not material; for if it be the course of the court, it is matter of law, of which we, as judges, must take notice. Such a way has obtained, but the question is, whether such a course has efficacy enough to be a good ground for a declaration; and suppose, when the defendant comes in, and puts in bail, he demands oyer of the original, do you think it will be enough to give him oyer of the clausum fregit? And he asked here, could an original in Dorsetshire be a foundation for a declaration in London?

Error(a) was brought upon a judgment in the common pleas in indebitatus assumpsit, and the action laid in Leicestershire. The defendant pleaded the statute of limitations, and the plaintiff replied a clausum fregit in Derbyshire, sued within six years, to arrest the defendant; and when he was brought in to declare against him in assumpsit,according to the course of the common pleas, the defendant rejoined, that he did not assume within six years before the issuing of the clausum fregit; and upon issue thereon, a verdict was given for the plaintiff, and judgment accordingly, in the common pleas.

And upon the general errors assigned, Mr. Parker, for the defendant in error, argued, that supposing the clausum fregit was sued with intent to declare in another action, and was well continued until the time of the declaration in the said action,

that will be a sufficient prosecution within the statute of limitations and that though in this case the clausum fregit was not continued, yet that will be aided by the verdict; which will distinguish this case from that of Mois v. Brereton, (a) and of Kinsey v. Hayward, (b) which cases were adjudged

shall be said the Whatsoever is a court to answer

upon the point of the discontinuance. That such a [*135] writ sued will avoid the operation of the statute of limitations; because the words of the statute are general, "shall be commenced and sued." If it had been said, that an original shall be sued, the objection here would have been strong; but now the sole question is, what commencement and suit of an action? proper method to bring the defendant into will be the commencement and suit of an action; because an action, in Co. Litt. 185. is defined to be nothing but jus prosequendi in judicio quod sibi debetur. That a clausum fregit is proper for that purpose, appcars, first, because, if a man lives in one county, and commits a trespass in another; if he be sued by original in trespass, there ought to be an original, and a capias upon it, in the proper county; and then a testatum capias in the county where he lives; all which dilatory proceeding is saved by the suing of a clausum fregit at once; and by declaring against him in the proper county when he comes in. Secondly, if a man makes a contract in the vacation, intending to run away immediately, if he be sued by original, he must be let go. at large, because one cannot have an original but of the prece dent term, which will be before the cause of action. But now, by the help of this clausum fregit, one may arrest him presently, and declare against him in a proper action the next term. The statute of 13 Car. II. st. 2. c. 2. in the preamble, takes notice of these clausum fregits, that they were processes used in the commencement of actions. And the said course is confirmed in T. Jones, 217. Atkins v. Jay. Besides, that there are other commencements of suits in the common pleas, than by original, as by bills of privilege. The true commencement of every action, in point of law, is a *proper original in [*136]