burrow johnson and another assignee of Hargreaves a bankrupt versus smith  widow executrix of Thomas smith her late husband Tuesday that may latitat be  the true commencement of action bring by bill of Middlesex within the meaning  of the statute of limitation SC black and vide will burr burr durn hill g  Rotlo this be a action upon the case upon assumpsit bring by the assignee of  the bankrupt estate and effect for for good sell and deliver by the bankrupt  before his become so to the defendant testator in his lifetime it come before  the court upon a demurrer to the defendant rejoinder and it be necessary to  state the plead particular because a great part of the argument turn upon they  the action be lie in Lancashire and there be nothing extraordinary in the  declaration it be a common and usual declaration contain several count the  first count wasFor that whereas the defendant testator Thomas smith three his  lifetime before the say Richard Hargreaves become a bankrupt to wit on the  first day of January in the year of our Lord at Preston in the say county be  indebt to the say Richard Hargreaves in of lawful money of great Britain for  diverse good ware and merchandise by the say Richard Hargreaves before that  time sell and deliver to the say Thomas at his special instance and request  and be so indebt he the say Thomas in consideration thereof afterward in his  lifetime to wit on the same day and year aforesaid at Preston aforesaid  undertake and to the say Richard Hargreaves before he become a bankrupt then  and there faithful promise to pay to he the say when he the say Thomas shall  be afterward thereunto request and whereas c this count be upon a promise to  pay what they be reasonablyworth and a averment of their be worth nevertheless  the say Thomas in his lifetime and the say mary the defendant since his  decease have not nor have either of they pay c there be two other like count  differ only in this that they lie the promise to be on first march and charge  the debt to be due and the promise make to the assignee not to Hargreaves  himself there be a imperfect note of this case in Str burrow er p the  defendant have leave to plead several plead first plead that her testator do  not in his lifetime undertake and promise in manner and form c and upon this  issue be join burrow and for further plea she say that the say Thomas smith do  not promise or undertake in manner and form as the say William Johnson and  Richard leigh have above complain against her at any time within six year next  before the day of exhibit the aforesaid bill of the say William Johnson and  Richard leigh and for further plea as to the two first promise mention in the  declaration she plead a set off the plaintiff reply as to the defendant second  plea in bar that after the make of the say several promise and undertake in  the say bill mention and after the say Richard Hargreaves become a bankrupt  and also after the decease of the say Thomas smith and within six year next  after the make of the say several promise in the say bill mention to wit on  the that day of November in the d year of the reign of our lord the now king  they the say William Johnson and Richard leigh for the obtain and recovery of  their damage by reason of the nonperformance of the promise and undertake in  the say bill mention sue out of the court of our say lord the king before the  king himself the say court then be at Westminster in the county of Middlesex  against the say mary a certain writ of our say lord the king call a latitat  direct to the then sheriff of the city of York by which say writ our say lord  the king command the say sheriff that they shall take the say mary in the say  writ call mary smith widow and executrix of Thomas smith her late husband  decease and John do if they may be find in their bailiwick and safe keep they  so that the say sheriff may have their body before our say lord the king at  Westminster on Tuesday next after the octave of saint Hilary then next follow  to answer the say William Johnson and Richard leigh assignee of the debt good  and effect which be of the say Richard Hargreaves a bankrupt in a plea of  trespass and that the say sheriff shall have then there that writ which say  writ they the say W I and r l as assignee in form aforesaid sue out against  the say mary as executrix as aforesaid with intent that the say mary may be  personal serve with a copy thereof accord to the form of the statute in such  case make and provide and that the say mary may appear at the return of the  say writ in the say court here at the suit of the say W I and r l and that the  say W I and r l as assignee in form aforesaid may thereupon exhibit their bill  in the say court here against the say mary as be executrix as aforesaid for  the obtain and recovery of their damage by occasion of the nonperformance  burrow of the several promise and undertake in the say bill mention accord to  the custom of the say court here at which say Tuesday next after the octave of  saint Hilary the say W I and r l as assignee in form aforesaid come by their  attorney aforesaid and the say mary likewise come by the say t h her attorney  and appear in the same court here at the suit of the say W I and r l accord to  the exigency of the say writ and the custom of the say court here r and  thereupon the say W I and r l assignee in form aforesaid accord to their  aforesaid intention in the term of saint Hilary in the d year of the reign of  our say lord the now king exhibit their aforesaid bill in the say court of our  say lord the king before the king himself against the say mary as be executrix  in form aforesaid for the obtain and recovery of their damage by occasion of  the nonperformance of the several promise and undertake in the say bill  mention and the say W I and r l further say I that the say Thomas smith in his  lifetime within six year next before the sue out of the say writ call a  latitat do undertake and promise in manner and form as the say W I and r l  have above complain against the say mary and this the say W I and r l be ready  to verify whereof they pray judgement and their damage by reason of the  nonperformance of the aforesaid promise and undertake to be adjudge to they c  and as to the last plea in bar to the two first count they reply that  Hargreaves be not indebt in manner and form as the defendant have in that plea  allege upon which issue be join and the say mary as to the aforesaid  replication of the say wm I and Richard l to the plea of the say mary second  above plead in bar say that by the course and custom of the court of our lord  be king here a writ of latitat sue out after the burrow er p end of any term  be suppose to have issue out of the say court here within the term then  precede but the say mary further say that the say writ of latitat in the  aforesaid replication mention be real and true sue out of the say court here  by they the say William and Richard after the say that day of November in the  same replication mention be the last day of Michaelmas term in the say d year  of the reign of our say lord the king that be to say on the eight day of  December in that year and on the same day and year be sign accord to the form  of the statute in such case make and provide and that the say Thomas smith do  not promise or undertake in manner and form as the say William and Richard  have burrow above complain at any time within six year next before the say  eight day of December on which day the say writ of latitat be so real and in  truth sue out as aforesaid and this the say mary be ready to verify wherefore  she pray judgement whether the say William and Richard ought to have or  maintain their aforesaid action against her to this rejoinder the plaintiff  demurrer general and the defendant join in demurrer this demurrer be argue on  Tuesday that February by the two counsel who have sign the plead videlicet by  Mr serj pool for the plaintiff and Mr Yates for the defendant the only  question be whether the truth of the fact can in this case be aver contrary to  the fiction of law Mr serj pool for the plaintiff argue that the rejoinder be  a bad one for two reason saint it be aver against the record dly it be  contrary to and destructive of the practice of this court and tend to destroy  the writ of latitat itself for the writ will be a nullity if test in vacation  first it be a averment against the record for the testae of the writ be a  matter of record Siderf Baily v bunning Mod Farrer v brook administrator of Jo  brook cro car Watts v baker Ro Abr Title court letter m pl SC side dacy v  clinch style coal v Sibsye Carthew Culliford v Blandford sir t Jones Walburgh  v Saltonstall Lutw Aldworth v Hutchinson in Pas g c b the case of Jones v  burnet be a assumpsit against the defendant bring by the plaintiff as endorsee  of a promissory note by a attachment of privilege the defendant plead that the  attachment issue on the that of February and that the note be not endorse till  after that day the replication be that in fact the writ be sue out in the  vacation c on such a day though test on the that day of February and that the  note be endorse before that day and on demurrer the replication be hold bad  this be a case in point for it be that reverb it be sue out in vacationtime  videlicet on such a day c the only case where this have be attempt in this  court re the two follow videlicet hoar v Yates p g b r usq Tr and m g but no  judgement burrow be give in that case it have be at last end between the party  it be upon a bill of Middlesex which have no testae but this be on a latitat  which have a testae the other case be that of Metcalf v borough m g b r S p a  but this case though solemnly argue be never determine it be to have be argue  a second time but never come on any more in proof of the second position he  cite the case of Eastwick v cook p g b r sand green v Jones Siderf mandamus  pur Sturling all moneyers salk Shirley v wright these case be in point to  prove that a latitat real test in vacation will be void and if the plaintiff  shall have a verdict and judgement upon such a issue as this it will be a  nullity and erroneous and if the rejoinder be proper the plaintiff must be  oblige to surrejoin accord which will be nugatory a from a ms note of this  case it appear that the cause be adjourn only on the plead and that lee c I  hold that if the testae have be plead there can be no averment against it but  it be otherwise as to the sue out which be what be plead in that case V  FitzGibbon burrow er p suppose upon a fine where the writ of covenant always  bear testae before the dedimus it shall be aver that in fact the writ of  covenant do not issue till after the dedimus this will if it be to be permit  set aside all the land security in the kingdom so in the case of recovery any  such averment of the process issue in fact in vacationtime will be bad by law  no process can issue but in termtime in any case whatever this method of plead  may be extend to all case if it be to be allow in any and the defendant be  estopped from aver this fact for the objection arise from one who be party and  privy to the suit which differ from case of averment by stranger who be  entitle to many privilege which privy can not claim Mr Yates contra for the  defendant this be a action on several promise make by the defendant testator  to which she plead non assumpsit infra sex aged of the time of exhibit the  bill the plaintiff reply that the plaintiff sue out a latitat test on the that  of November the defendant rejoin that three fact the latitat be issue out on  the that of December and that the defendant testator do not promise within six  year of that day to which rejoinder the plaintiff have demurrer burrow this  point depend upon the construction of the statute of limitation and the  question be what be a commencement or sue of the action within that statute  and whether the defendant be at liberty to aver the real and true day on which  the latitat in fact issue Mr serj object that this be aver against the record  that it will be destructive of the practice of the court and even of the very  writ itself and that the defendant be party and privy to the suit be estopped  from aver this fact it may be observe in the first place that no testae of  this writ be express show nor be there even a reference prout to stand open  per record the plaintiff only allege that he sue out a latitat test on the  that of November however what we deny be the fact that the writ issue on the  that of November the very issue of the writ at all may be deny much more the  time of issue it or the day upon which it issue we say that in fact it do not  issue till the that of December this fact we aver and rely upon and the true  time of take out the latitat may be aver contrary to the nominal testae the  plaintiff may declare so and the jury may find so this be determine in the  case of Walburgh v Saltonstall vent the sue out the writ be a matter of fact a  act do by the plaintiff and the court will not intend that this latitat be  real sue out and issue in term mere because it be test in termtime especial  when the fact appear upon the record to be otherwise and the fact do so appear  upon the record for the demurrer admit that the writ be in fact sue out and  issue out of term and there be nothing to preclude the defendant from show and  aver this fact here be no estoppel at all because the truth be apparent upon  the same record   light a b lie down the rule of estoppels and the that rule  be express so the case of Kemp v Godal in salk settle the difference about  estoppels and lie it down that where the estoppel appear upon the record the  other side may demurrer Lutw Aldworth v Hutchinson be the same point and it be  there observe that if that judgement be give upon the reason of a estoppel a  covenant may be in judgement of law break where in fact it be not break burrow  but even suppose the testae to have be former and express show yet the time  when a latitat issue be traversable and may be aver different from the testae  the case of billon v Johnson and long in keb and Raymond be a resolution in  point most express and strong the case of chancy v rutter keb be a subsequent  determination of the same point accord and upon the authority of the former  case and of Bennet and Pilkins case the case of Lazall v dyer salk be strong  in point where the court hold a writ test of a precede term though legal a  proceed of that term yet not to be so in fact and Ro Abr letter f pl be to the  same effect and distinguish between the purchase of the writ andthe date of it  the case of man v Adam in Siderf be a action of debt against a executor who  plead plene to manage and there be a replication of asset die display billae  scilicet the d of October the court save to the defendant upon evidence the  time of the come in of the bill burrow er p the stampact require the officer  who sign the latitat to set down the day and year of sign the writ now the  officer can never be convict of a neglect of his duty if no averment can be  make contrary to the testae therefore there be case where this may be do the  next consideration be whether this be a case where it may or ought to be do as  to the case of Watts v baker in cro car it conclude cloth to the present case  the time of sue out the writ can not be in question in that case for the very  arrest itself be prior to the tender of amends the case of dacy v clinch side  and coal v Sibsye in style a Culliford v Blandford in Carthew be only that sue  out a latitat within six year will save the statute they prove nothing more in  the case of Metcalf v Burroughs the return be set forth and the record refer  to as to the case of Aldworth v Hutchinson Lutw there be no final burrow  judgement nor any cause show and the reporter own note upon the judgement nisi  be against it the case of Jones v burnet differ from this ease and there the  plaintiff contradict his own writ he may have bring his action soon too and  that be a attachment of privilege this be a latitat in the case of Walburgh v  Saltonstall holt only argue as counsel he do not speak as a judge therefore  what he there say be no authority at all especial as the court determine  against he the case of Baily v bunning and Farrer v brook be question on  commonlaw point this be on the construction of a Act of parliament and the  fictitious relation of the testae ought not to clash with the intention of the  legislature in the construction of a Act of parliament much less shall the  fictitious relation of law overturn the intention of the legislature in a  statute make for the security of the subject and to prevent stale demand from  be set up the case of green v rivet in salk and particular mention this  statute as be to be favour because the security of all man depend upon it the  word of the statute be commence and sue within six year and not after  therefore the plaintiff can not enlarge the time to six year and four month  the word sue be as strong as if it ha r be actual sue and it be confine to not  after the six year so that the plaintiff be actual bar by the statute before  he sue this writ and fiction shall not elude the statute when the plaintiff be  already bar by it these fiction do not always prevail and they shall never  prevail so as to work a wrong the case of billon v Johnson and long and chancy  v rutter and Ro Abr and man v Adam all prove this it have be urge that this  rejoinder will destroy the latitat itself by make it a nullity and erroneous  but this writ be in fact original a nullity within the meaning of this statute  as be sue in vacation after the six year be expire however here the averment  be essential to the merit of the case and the provision of the statute if the  writ be in fact sue out after the six year expire it be immaterial whether it  be a nullity or not in point of legal form for the time of sue out must here  be take in the true substantial sense of the word burrow he allege that the  justice of the present case be on his client side and rely upon his  observation abovementioned that this rejoinder pursue the very word of the  statute which be a beneficial law and ought to be favour Mr serj pool in reply  it appear upon the face of the record that the testae and sue out of this writ  be in termtime for it be necessary to be presume that the writ must have  actual issue on the day when it be test which must be in termtime and it be  here in this replication allege in the common way of set it out in plead the  estoppel here appear upon the record itself and therefore it need not be plead  by a party to the record as to the case of Bilton v Johnson and other in Keble  and and in Raymond that may safe be admit to be law for that be the case of a  stranger for the defendant the sheriff bailiff be a stranger to the original  action and it be for the furtherance of justice and to prevent fraud but that  v Jones Ventr Skinn v keb burrow er p case do not prove I that it may be do by  party and privy harrison case cite in keb in the case of chancy v rutter  express take the distinction between stranger and party or privy and say that  a stranger be not conclude but the party be the case of Pigot v Roger cro  James be also the case of a stranger not of a party or privy as to the  stampact and the statute of fraud the former only relate to the officer it do  not affect the present doctrine the latter relate only to purchaser the  judgement be the same as it be before with regard to all other person as to  construe the statute of limitation accord to the intention the commence a suit  and sue out process the two expression use in the statute must mean the very  same thing and this must be determine by the testae of the process sue out as  a commencement of the suit Lord Mansfield this be the seven or eight time that  this question have be argue at the bar therefore there needs no further  argument we will consider of it cur advis Lord Mansfield now deliver the  solemn resolution of the court have first state the plead very particular in  which he say a great part of the argument consist burrow this demurrer can  only be support upon one of these two ground either first that the fact aver  be not relevant or dly suppose it relevant that proof can be receive to show  the truth the first depend upon the construction of the statute of limitation  James c now there never be a plain proposition conceive in plain English word  than the rule lie down by this Act of parliament it enact that all action upon  the case other than such account as concern the trade of merchandise between  merchant and merchant their factor and servant shall be commence and sue  within six year next after the cause of such action or suit and not after the  statute be negative and prohibit that which must be the act of the party be  the form as it may the sue commence or bring a action must be by some act of  the party and that be the thing prohibit after the expiration of the limit  time the precede Act of limitation h c compute the prescription from the time  run before the t testae of the writ therein mention but because that will not  be a true criterion of the time of commence suit within the provision of this  statute of I James c the legislature have in the latter which profess to be  make for quiet of man estate and avoid of suit purposely avoid mention the  testae of writ the exhibit bill the arrest the hold to bail summon serve or  any other form of process but leaves to every court to say what act of the  party commence the suit and after the limit time forbid that be do the moment  the six year expire the prohibition attach the legislature say he shall not  sue after that time if the time expire in June and he take out his first  process in October that act do by he in October be prohibit and against the  law for the statute say he shall not sue after if by antedate the writ he do  sue after then this effect of the antedate be direct contrary to both the word  and meaning of the Act of parliament No answer have ever be give to this but  by suppose that the statute to prolong time as to suit in the king bench as  far as the course of that court of antedate writ will carry it burrow this beg  the question against demonstration the word be general the reason of the law  be general and incompatible with this exception why bar the bring suit b  original and not by every other writ why shut the door of every concurrent  jurisdiction throughout the kingdom while the court of king bench be leave  open what shall be the period be at first arbitrary and indifferent but when  it be once fix it must equal bar in every court otherwise it be no limitation  of action nor avoidance of suit the course of antedate writ sue out in the  vacation and suppose they to be of the precedent term afford no colour for  imply such a exception the sect V S burrow er p legislature may have say that  after six year a writ shall not be sue out in the vacation though bear testae  before the end of the six year if take out the writ be that first step by  which the party bring or commence his suit the legislature have say that after  six year he shall not take out the writ the statute consider the time when the  suit be real bring and can by no possibility be imply to refer to the  retrospective testae of the writ by the course of this court if so plain a  thing can be make plain there happen to be a clause in the Act which be  decisive sufficient amends may be tender for a involuntary trespass before the  action bring apply the argument to this clause and the provision will be thus  to prevent frivolous and vexatious suit there may be a tender of sufficient  amends before the action bring but by a imply reference to the course of the  court of king bench the party may after the tender bring his action with a  antedate which shall overreach and defeat the tender and so the imply  reference repeal the express text it happen most unfortunate too for this  hypothesis of a imply reference to the artificial commencement of a action by  the course of this court that if it be admit the sue out a latitat will not  save the run of the statute the bill here be as a original writ and the want  of it equal cure after a verdict it be the first process upon record and by  the course of this court the commencement of the action the form of plead the  statute of limitation show that it be ante impetrationem short catalog in the  one case ante display billae in the other burrow it be not settle till many  year after the statute that the plaintiff may reply a latitat sue out within  the six year in the case of coal v Sibsye in it come before the court and the  point be adjourn but in mich c in the case of dacy v clinch and late in m g  Henderson v Whitaker et all it be determine that the plaintiff may reply a  latitat there can be no doubt but that exhibit the bill be bring the action  and therefore the plea that six year have run before exhibit the bill be  certain good but the latitat be hold and right hold to save the bar within the  reason and equity of the case the statute do not intend to bar unless the  party have acquiesce six year but he who sue out a latitat to bring the  defendant into custody that he may declare against he do not acquiesce within  the true meaning of the Act though artificial the bill be upon the record the  first step the day he sue out the latitat he may have take out a original and  any construction of the statute to make it bar one form of sue while other be  open be nugatory and contrary to its true intent but to bring it within the  equity of the law the latitat must be take out with intent to declare in that  action and must be continue to fill of the bill when the replication of a  latitat come to be allow to save the bar and prevent the run of the statute  because sue out a latitat be in real truth a act of diligence in the party and  the first step towards recover his demand by the action depend though in a  strict legal sense by the course of this court such action be not deem to be  bring till the bill be file it will be most extraordinary and most unequitable  not to allow this equity to be rebut by the defendant by show that in real  truth the time be run before the plaintiff take any step he be actual bar  before he sue out the latitat though in form by the course of this court as  the action be suppose to be bring late the latitat be suppose to be take out  early than the real truth very unequal will that interpretation be which shall  construe the same word for the plaintiff accord to the real substantial truth  of the thing in opposition to legal form and against the defendant accord to  legal notion and form contrary to real truth more especial when the law from  the nature of it ought to be take liberal in favour of defendant the  limitation of suit be find in public convenience and attend with so much  utility that court of equity adopt this statute as a positive rule and apply  it by parity of reason to case not within it burrow this very cause between  party who on both side be stranger to the whole transaction show the wisdom of  some limitation the that clause style m bane sup siderfin see also durn queen  if consistent with burrow er p therefore we be all clear of opinion that  within the true meaning of the Act of parliament six year have expire before  the latitat be in fact take out be sufficient to rebut the matter of the  plaintiff replication which allege that although the suit be not bring within  the six year accord to the course and legal notion of this court yet in fact  it be bring within the time by sue out the latitat which bring I to the second  point whether the party may be permit to show that the latitat be take out  after the six year expire if the testae of a latitat be conclusive wrong  mustnecessarily be do in many other case as well as the present and great  inconvenience and absurdity will follow No man who cause of action arise in  the vacation can sue out this process till the next term which will be a  injury to plaintiff and defeat the very end for which this practice be  introduce the defendant may be arrest long before the writ he may be sue after  he have make a legal tender which will be a manifest injury to defendant but  the court will not endure that a mere form or fiction of law introduce for the  sake of justice shall work a wrong contrary to the real truth and substance of  the thing and they have for year uniform hold that where it become material to  distinguish they will consider the day when the writ be take out as the  substance and the testae as the form in the case of Pigot v Roger it be hold  that a latitat bear date before the bind upon which the action be bring but  returnable after be right because say the court the process always bear testae  the last day of the term before so in keb a obligation not to prosecute before  a limit time be hold not to be break by a latitat take out after the time  though it be test before the reason give be because the latitat be not suable  with any other testae than of the precede term where the arrest be before the  actual sue out of the writ it have be often determine that it can be justify  and that the day when it issue may be aver notwithstanding the testae be  before the arrest burrow the case of billon v Johnson and other be trespass  and false imprisonment in London the defendant plead that I S sue forth a writ  of latitat the last day of Trinity term direct to the sheriff of r and by  virtue of that the sheriff of the say county make a warrant to the defendant  whereupon he take the plaintiff which be the same imprisonment without hoe  that he be guilty in London well aliter well elsewhere modus the plaintiff  reply that the say v r it be in truth prosecute after the imprisonment to wit  on the that of August upon this the defendant demurrer and it be not adjudge  for the plaintiff because although the testae of the writ be upon record and  the plaintiff can aver against it yet here will be great inconvenience if the  plaintiff can set forth the very time when it be purchase and the relation of  the date to the last day of the precede term be only calculate to prevent  fraud but not to justify a tort and in the same case ld Ch I Kelynge be report  to have say that the time when a latitat issue forth be traversable and may be  aver otherwise than accord to the testae which be agree by the whole court for  a relation shall not work a wrong if a man be take in the vacation by warrant  without writ and a latitat be procure test in the precede term it shaft not  discharge the wrong do after the testae and before the actual take out of the  writ but the plaintiff may take issue when it be prosecute in truth in the  case of Hanway v Merrey it be hold that though a latitat may be take out  before the cause of action yet the party can not be arrest upon it till after  and in that case the court discharge the arrest in the case of Chauncy v  rutter in trespass and false imprisonment the defendant justify by arrest on a  latitat the plaintiff reply that the writ be take out after the arrest to  which replication the defendant demurrer et per curian the antedate of the  writ will not suffice if the proceed be after h I cro James see Bosanq p c  raym and Keble Keble m c Keble p c Ventr burrow er p so as to tender in the  case of Watts v baker it be hold that a tender come too late after a arrest  upon a latitat but the ground of that case imply that if a tender be make  before the latitat take out in fact the retrospective testae of the writ which  may be even before the cause of action can not deprive the defendant of the  benefit of that tender in a action upon the case where it be necessary to  state the take out a latitat the party may declare that it be sue out such a  day in the vacation bear burrow testae of the last day of the precede term or  if the testae only be state in the declaration and the question shall turn  upon the precise day when it be take out the jury may find it and this be  adjudge so long ago as the reign of Charles the second the declaration allege  the latitat to be sue out of the court on the first of January the jury have  find that the testae of it be on the that of November be the last day of the  precede term but that it be indeed sue out of the court on the first of  January as the plaintiff have declare the declaration be hold to be good  because it be accord to the truth of the fact though the testae of a latitat  must be of the precede term in the same case report in Ventr it be state that  a special verdict be find that the latitat bear testae the that of November  car but be real take out the first of January follow holt who be counsel for  the defendant argue that by law it must be deem to be take out the that of  November when the testae S ld Ch I Pemberton be report to have give the rule  in the follow word we know the course of this court be to testae latitats take  out in the vacation as of the term precede and the course of a court be the  law of a court the plaintiff may have declare that he sue out a latitat the  first of January test the that November precede and if he be not estopped to  declare so sure the jury may find the whole matter and so judgement be give  for the plaintiff numberless be the act of parliament in the statutebook which  give action CC so as the suit be bring or commence within one two three or  four month or some long time and not afterward and many give action to the  party aggrieve to be bring within two three or four month and if the party  aggrieve do not sue within that time then to a common informer notwithstanding  the doubt in the case of Culliford v Blandford it be now settle that a latitat  be a good commencement of a penal action and be so hold in this court in h g  in the case of bridge who tam v Knapton if the testae of a latitat be to be  conclusive as to the time of sue the time give by the legislature may be  enlarge to double or triple the number of month after expiration of the time  give to the party aggrieve the common informer may take out a writ and then  the party aggrieve may defeat his right after it have attach by take out a  latitat with a antedate by this mere form or fiction of law which for good  purpose give the latitat a antedate mere as a matter of burrow form penal  statute will be render more penal and man will be subject to penalty to which  by law accord to the truth of the case they be not liable the plaintiff who  sue upon any of these act which be very numerous must take out the writ in  fact within the time the testae of the writ will not be sufficient the act do  by he in commence the suit within the limit time be in the nature of a  condition precedent to entitle he to maintain that action if the legislature  have not take for grant that the true time of sue out a writ may be show in  opposition to the testae it will have be absurd to have limit the time to one  two or three month follow by the negative word and not afterward or in default  of the party aggrieve sue within such time to give a immediate right to a  common informer and yet this be the form in which such act be pen from the  beginning to the end of the statute book Tr car cro car h c Walburgh v  Salstonstal sir t Jones and Ventris this be another argument of it three term  late than that in sir t Jones Mod Tr W m in b r I find the same point solemnly  determine in another case in the very term next precede videlicet hardman who  tam c v Whitaker all be m g b r burrow er p the Act of h give a penalty of l  to the burgess choose and not return so as he sue for the same within three  month or to any other person who in default of he so choose shall sue for the  same suppose latitats be take out upon this Act by the party aggrieve and also  many other person in the long vacation all bear date the last day of Trinity  term how can it be determine who have a right to sue but by show the true time  when the writ be respective prosecute the Ann c give a action to the person  lose l at play to be bring within three month and if he do not sue within that  time then to any body else there be a multitude of modern act down to the  present session of parliament pen exact in the same way I have be tell that at  nisi prius it have often be rule in suit upon such statute that the true time  of take out the writ may be show notwithstanding the testae the very pen of g  c be absolute inconsistent with the notion of the testae be conclusive because  it say the suit shall be bring before the end of the next term which this  doctrine will construe to mean after the end of the next term burrow but there  be one Act in the statutebook which alone will be decisive that the true time  of sue out the writ may be show and that be the W m c where for prevent abuse  by arrest person without legal process the officer be require to enter the  very day when the writ be sign but if the very day can never be show in plead  or evidence it will have be most absurd to have provide a record from which it  may appear the statute do not enact that the testae shall not be conclusive  but take it for grant that it be not it be due to the great and long  litigation which this question have bear in westminsterhall to consider  careful every thing that have be say and look into every case or authority  that have be quote on the other side I have do so and upon the most minute  examination be not able to find any principle of law determination or  authority which contradict the proposition I have endeavour to prove videlicet  that where the true time of sue out a latitat be material it may be show  notwithstanding the testae the argument against allow such a averment be draw  from rule and case the reason of which be not the same though they bear a seem  similitude in sound No conclusion can be draw from rule establish in the case  of a writ which ought to bear date the day it be sue out and which may be  quash upon motion for irregularity if it be antedate I allow the maxim lie  down in Plowden and many other book that no man shall be allow to plead or  prove that such a writ be sue out on a different day from that on which it  bear date Plowden give the reason because contradict the testae tend to  discredit some judicial or other officer of record but this only go to the  mode of redress the false date do not final conclude the party his redress be  in a summary way by application to the court out of which the writ issue and  therefore in the court of exchequer in the case of the king v Mann upon a  extent the court incline to disallow the plea and set aside the writ upon  motion because it be antedate but a averment that a latitat test the last day  of the precedent term issue in the vacation do not tend to discredit the  officer for by law it may so issue burrow and ought to be so antedate it can  not be set aside upon motion for irregularity because it be right the averment  do not contradict the record because take the course of this court together  with the testae of the writ it stand indifferent whether the writ be sue out  the last day of term or in the vacation and there be the difference between  such a writ as this and those that be intend by Plowden the reason why no body  shall be permit to aver that a judgement be sign after the first day of the  term or that a become facias be take out in the vacation c it be sect in the  original print statute and it be repeat in the W c S Plowd b a strange burrow  er p be because the fact be not relevant the legal consequence do not depend  upon the truth of the fact on what day the judgement be complete or the writ  of become facias actual take out but upon the rule of law that they shall be  deem complete and bind to all intent and purpose by relation the moment the  law say judgement shall bind purchaser only from the sign it follow that in  the ease of purchaser the time of sign may be show if to invalidate the writ  there be a averment that it issue on a day in the vacation there the inference  will hold from the case of a judgement or become facias and to be sure such a  averment can not be allow because to that purpose the fact be not relevant for  by law a latitat may issue in the vacation test the last day of the precedent  term authority that a latitat be void if it bear testae out of term which be  the case of buckridge v wright prove nothing to the present purpose because it  be equal certain that it may be purchase out of term provide the testae be  formal the case of Jones a attorney v burnet upon a writ of privilege be not  applicable the court there hold the replication to be insufficient but abate  the writ and the ground they go upon be that it appear on the plaintiff own  show that his writ bear date before his cause of action though in fact take  out after but they consider that writ as in the nature of a original and  therefore abateable if it bear date before the cause of action now the direct  contrary be the establish law in the case of a latitat for it may bear date  before if real prosecute after the cause of action the case of Aldworth v  Hutchinson have be much rely upon though it be never argue ed again judgement  burrow nisi be say to have be give for the plaintiff and no cause show but no  judgement be enter upon the roll and there may be a very good reason to give  judgement for the plaintiff upon the true construction of the covenant the  word may very fair take in all process as of that term especial a judicial  writ which must proceed upon a ground prior to the end of the term the  reporter suppose the time of sue out the to know facias to be material passes  a strong censure upon the judgement if it stop the party from show the truth  for he say if such be the ground then in judgement of law a covenant may be  break when in reality and truth it never be break quod notam and it will be  well worth nothing indeed for no proposition can be more unjust upon the  argument in this cause it be say that ld Hardwicke in the case of hoar v Yates  be of opinion against the averment and that Mr I lee come over to that opinion  and that his lordship be ready to have give judgement when he be tell the  party have agree I can form a opinion upon a point of law which will not be  shake by so great a authority but his lordship have be so good as to let I  have his note of the two argument in that case before he there be no notice  take in his lordship own note of what may fall from himself and it do not  appear from his lordship note of what Mr just lee say that he change his  opinion his lordship say he believe he have not form a conclusive judgement in  his own mind and that he certain have make no preparation towards deliver it  in court and he have be please to tell I that he incline to the opinion of Mr  just page and Mr just lee who be for admit the averment in the defendant  rejoinder against the opinion of Mr just probin who think it can not be admit  by law and we be all most clear of opinion that the averment in the defendant  rejoinder ought by law to be admit consequent the demurrer must be overrule  and judgement for the defendant h g in b r p g in c b Lutw v Lutw ita quod  tall to cut action processus complaint disturbance clameum well demand to  touch begin c per well ante that which divides termini Sci mich tunc neighbor  sequen burrow er p