brown vers Babbington Intr mich or will b r rot a enclosed space to break in  pieces sue out for the purpose of bring the defendant into court in order to  enable the plaintiff to declare against he in a action of assumpsit will Lord  Raymond er p not prevent the statute of limitation from attach upon the cause  for which such action be bring error upon a judgement of the common plea in  indebitatus assumpsit for bring by a executor and the action be lie in  Leicestershire the defendant plead non assumpsit infra sex aged the plaintiff  reply and show a enclosed space to break in pieces in Derbyshire sue within  the six year and that it be with intent to arrest the defendant and when he be  bring in to declare against he in assumpsit accord to the course of the common  plea the defendant rejoin that he do not assume within six year before the  issue of the enclosed space to break in pieces and upon issue thereupon a  verdict be give for the plaintiff and judgement accord in c b and now upon the  general error assign Mr Parker for the defendant in error argue that suppose  that the enclosed space to break in pieces be sue with intent to declare in  another action and be well continue until the time of the declaration in the  say action that will be a sufficient prosecution within the statute of James c  and that though in this case the enclosed space to break in pieces be not  continue yet that will be aid by the verdict which will distinguish this case  from that of mois v Brereton ante and of Kensey v Hayward ante which case be  adjudge upon the point of the discontinuance that such a writ sue will avoid  the operation of the statute of limitation because the word of the statute be  general shall be commence and sue if it have say that a original shall be sue  the objection here will have be strong but now the sole question be what shall  be say the commencement and suit of a action whatsoever be a proper method to  bring the defendant into court to answer will be the commencement and suit of  a action because a action in   light be define to be nothing but law to follow  in judgment quod Himself to withhold that a enclosed space to break in pieces  be proper for that purpose appear because if a man life in one county Lord  Raymond and commit a trespass in another if he be sue by original in trespass  there ought to be a original and a capias upon it in the proper county and  then a testatum capias in the county where be life all which dilatory proceed  be save by the sue of a enclosed space to break in pieces at once and by  declare against he in the proper county when he come in if a man make a  contract in the vacation intend to run away immediate if he be sue by original  be must be let go at large because one can have a original but of the  precedent term which will be before the cause of action but now by the help of  this enclosed space to break in pieces one may arrest he present and declare  against he in a proper action the next term the statute of car saint c in the  preamble take notice of these enclosed space fregits that they be process use  in the commencement of action and the say course be confirm in t Jones Atkins  v jay beside that there be other commencement of suit in the common plea than  by original as by bill of privilege the true commencement of every action in  point of law be a proper original in such action and therefore strict speak a  enclosed space to break in pieces can be a original but in ad action of  trespass but yet if by the course of the common plea a enclosed space to break  in pieces issue before the sue of a proper original in any action and be use  as a process to bring the defendant in and upon such enclosed space to break  in pieces he be arrest c the sue of such enclosed space to break in pieces  will be a sue and commencement of a action within the meaning of the statute  of limitation for it be equal a demand of my right and what shall be and what  shall not be a commencement of a action must be determine by the course of the  court and that be the reason why a bill in the king bench be hold as the  original there and the want of it aid by verdict by Elizabeth c within the  word want of any writ original c hob this statute have be expound liberal as  to the save the right of party therefore it vide ante post side pl salk pl keb  pl pl a have be resolve that where a action have be commence by plaint enter  in a inferior court within these six year and then the action have be remove  by habeas corpus and the statute plead though the proceed here be de to make  new yet the entry of the plaint in the inferior court be such a proceed as  will avoid the statute of limitation and that the proceed upon the habeas  corpus be in some sort a continuance of the former suit side Whitwith v  Hovenden and the case in lev be exact a case in point then he say that the  case of latitats in this court be of the same nature for they be issue for a  suppose trespass and when Lord Raymond er p the defendant come in he shall  answer in other action but the case of the latitat be a strong case for a vide  Cowp b latitat many bear testae before the cause of action Lord Raymond vent  and the bill of Middlesex in this court be never file and the latitat be the  first process dier cro car so the enclosed space to break in pieces be the  first process in the common plea and always file objection that there be no  foundation for this averment since there be no clause of ac etian billae in it  as there be in latitats answer the same objection hold in all case of latitats  before the car saint c in compliance with which statute the say clause be  insert in latitats as appear in keb and so it be at this day in all latitats  where special bail be not require as to the matter of the discontinuance he  say that it be aid by the verdict by the h c and be cite several case of  defect aid by verdict as Yelv Kendrick v Pargiter sand Stennel v Hogden lev  cro car the case of Gidlei v William see before Allen cro James keb the case  in point upon a plea of a latitat e contra it be argue by Mr cheshire for the  plaintiff in error that both the case cite by Mr Parker of mois v Brereton and  Kensey v Hayward be adjudge upon this reason videlicet the original be not  proper in the say action and that this be worse than any of they because this  action be bring by executor and the enclosed space to break in pieces be for a  trespass do to they in their own right quare enclosed space Self to break in  pieces that the verdict will not help because the original be improper and  therefore the issue void and immaterial but in the case cite of the other side  the issue be proper holt chief justice say that this case be not like the case  of latitats in the king bench because a latitat be a ancient process of this  court and be a process of this court at the time of the make of the statute of  limitation and the use only to bring in a man in custody and then they declare  against he in custodian marescalli Marescalciae but when a man be bring in by  a enclosed space to break in pieces in the common plea they do not declare  against he in custodian guardiani de la fleet but upon a original proper for  the action and this practice of enclosed space to break in pieces in the  common plea be new and they have another way to sue there videlicet by  original but in the king bench a latitat in some action be the only way to  commence the suit north chief justice of the common plea make a complaint of  latitats in parliament Lord Raymond and the matter suffer great agitation in  parliament but at last the latitats be approve as they be also by Elizabeth c  which give a writ of error in the exchequer Chamber but except error to be  assign for want of jurisdiction in the king bench now this be the process of  the king bench at the time of the make of the statute of limitation it must be  understand to be comprise within the meaning of the Act and he say he imagine  that after thereversal of the judgement of Kensey v Hayward be affirm in  parliament this point will never have be move again but far he say here be a  fatal fault videlicet that the plaintiff do not show that the original be ever  return now if he show a writ and do not return it that will not avoid the  statute of limitation and powys and gold justice agree in all these matter  with the chief justice holt and say that in the case of Culliford v Blandford  in the exchequer Chamber all the judge there hold that a latitat be a kind of  original in the king bench Powell justice agree with they that the judgement  ought to be reverse for want of show a return of the writ but as to the other  point he seem to retain the opinion that he have give in the common plea in  the case of Kensey v Hayward when he be judge there videlicet that the show of  such enclosed space to break in pieces will avoid the statute of limitation as  well as a latitat allege that a enclosed space to break in pieces be the  ancient process of the common plea and very useful to the subject in save the  fine due upon the original which they never sue if there be a verdict in the  cause but after a demurrer they sue it the judgement be reverse Lord Raymond  er p