party cannot be arrested upon it till after; and in that case the court discharged the arrest.

In the case of Chauney v. Rutter, (a) in trespass and false imprisonment, the defendant justified by arrest on a latitat. The plaintiff replied, that the writ was taken out after the arrest; to which replication the defendant demurred. Et per CuriamThe antedate of the writ will not suffice, if the proceeding be after.

So as to tenders. In the case of Watts v. Baker,(b) it was holden, "that a tender came too late after an arrest upon a latitat." But the ground of that case implies, that if a tender was made before the latitat taken out in fact, the retrospective teste of the writ (which might be even before the cause of action) could not deprive the defendant of the benefit of that tender.

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*In an action upon the case, where it is necessary to state the taking out a latitat, the party may declare that it was sued out such a day in the vacation, bearing teste the last day of the preceding term; or if the teste only be stated in the declaration, and the question should turn upon the precise day when it was taken out, the jury may find it. And this was adjudged(c) so long ago as the reign of Charlés II.

The declaration alleged the latitat to be sued out of the court on the 21st of January: the jury found that the teste of it was on the 28th of November, being the last day of the preceding term; but that it was indeed sued out of the court on the 21st of January, as the plaintiff had declared. The declaration was held to be good, because it was according to the truth of the fact, though the teste of a latitat must be of the preceding term.

In the same case, reported in 1 Ventr. 362. it is stated, that a special verdict was found, "that the latitat bore teste the 28th

(a) 3 Keb. 213.

(b) Cro. Car. 264.

(c) Sir T. Jones, 149

of November, 32 Car. II. but was really taken out the 21st of January following." Holt, who was counsel for the defendant, argued, that by law it must be deemed to be taken out the 28th of November, when the teste is. Lord Ch. J. Pemberton is reported to have given the rule in the following words: "We know the course of this court is to teste latitats taken out in the vacation as of the term preceding: and the course of a court is the law of a court. The plaintiff might have declared, that he sued out a latitat the 21st of January, tested the 28th of November preceding; and if he be not estopped to declare so, surely the jury may find the whole matter." And so judgment was given for the plaintiff.

*Numberless are the acts of parliament in the stat- [*126] ute book which give actions "so as the suit be brought or commenced within one, two, three, or four months, or some longer time, and not afterwards." And many give actions to the party aggrieved, to be brought within two, three, or four months, and if the party aggrieved do not sue within that time, then to a common informer.

Notwithstanding the doubt in the case of Culliford v. Blandford,(a) it is now settled, "that a latitat is a good commencement of a penal action:" and was so holden in this court, in Hil. 22 G. II. in the case of Brydges, qui tam, v. Knapton.

If the teste of a latitat was to be conclusive as to the time of suing, the time given by the legislature might be enlarged to double or triple the number of months. After expiration of the time given to the party aggrieved, the common informer might take out a writ: and then the party aggrieved might defeat his right after it had attached, by taking out a latitat with an antedate. By this mere form or fiction of law, (which, for good purposes, gives the latitat an antedate merely as a matter of form,) penal statutes would be rendered more penal; and men

(a) 4 Mod. 129,

would be subject to penalties, to which, by law, according to the truth of the case, they are not liable. The plaintiff who sues upon any of these acts (which are very numerous) must take out the writ in fact within the time: the teste of the writ will not be sufficient. The act done by him, in commencing the suit within the limited time, is in the nature of a condition precedent to entitle him to maintain that action. If the legisla

ture had not taken for granted, "that the true time of [ *127 ] -suing #out a writ might be shown in opposition to the teste," it would have been absurd to have limited the time to one, two, or three months, followed by the negative words, "and not afterwards:" or, in default of the party aggrieved suing within such time, to give an immediate right to a common informer: and yet this is the form in which such actions are penned, from the beginning to the end of the statute book.

The act of 23 H. VI. c. 15. gives a penalty of 401. to the burgess chosen, and not returned, so as he sue for the same within three months; or to any other person who, in default of him so chosen, shall sue for the same. Suppose latitats were taken out upon this act by the party aggrieved, and also by many other persons, in the long vacation, all bearing date the last day of Trinity term, how could it be determined "who had a right to sue," but by showing the true times when the writs were respectively prosecuted?

The 9 Anne, c. 14. gives an action to the person losing 101. at play, to be brought within three months; and if he do not sue within that time, then to any body else. There are a multitude of modern acts, down to the present session of parliament, penned exactly in the same way. I have been told, that at Nisi Prius it has been often ruled, in suits upon such statutes, "that the true time of taking out the writ may be shown, notwithstanding the teste." The very penning of 8 G. I. c. 19. is absolutely inconsistent with the notion of the teste being conclusive; because it says, the suit "shall be brought before the end of the

next term;" which this doctrine would construe to mean, after the end of the next term.

*But there is one act in the statute book which [*128] alone would be decisive that the true time of suing out the writ may be shown, and that is 5 W. & M. c. 21. s. 4. where (for preventing abuses by arresting persons without legal process) the officer is required to enter the very day when the writ is signed. But if the very day could never be shown in pleading or evidence, it would have been most absurd to have provided a record from which it might appear. The statute does not enact that the teste shall not be conclusive, but takes it for granted that it is not.

It was due to the great and long litigation which this question has borne in Westminster-Hall, to consider carefully every thing that has been said, and to look into every case and authority that has been quoted on the other side. I have done so : and, upon the most minute examination, am not able to find any principle of law, deterinination, or authority, which contradicts the proposition I have endeavoured to prove, viz. that where the true time of suing out a latitat is material, it may be shown notwithstanding the teste.

The arguments against allowing such an averment, are drawn from rules and cases, the reason of which is not the same, though they bear a seeming similitude in sound. No conclusion can be drawn from rules established in the case of a writ which ought to bear date the day it is sued out, and which may be quashed, upon motion, for irregularity, if it be antedated. I allow the maxim laid down in Plowden, (a) and many other books, "that no man shall be allowed to plead or prove that such a writ was sued out on a different day from that on which it bears date." Plowden gives the reason :-Because contradicting the *teste tends to discredit some judicial or [*129]

(a) Plowd. 491, b. 492. a

other officer of record. But this only goes to the mode of redress: the false date does not finally conclude the party. His redress is in a summary way, by application to the court out of which the writ issues: and therefore, in the court of exchequer, in the case of The King v. Mann,(a) upon an extent, the court inclined to disallow the plea, and set aside the writ, upon motion, because it was antedated.

. But an averment, "that a latitat tested the last day of the precedent term, issued in the vacation, does not tend to discredit the officer;" for, by law, it may so issue, and ought to be so antedated. It cannot be set aside, upon motion, for irregularity; because it is right. The averment does not contradict the record, because, taking the course of this court, together with the teste of the writ, it stands indifferent whether the writ was sued out the last day of the term, or in the vacation. And there is the difference between such a writ as this, and those that are intended by Plowden.

The reason why nobody shall be permitted to aver that a judgment was signed after the first day of term, or that a fieri facias was taken out in the vacation, is, because the fact is not relevant the legal consequences do not depend upon the truth of the fact, on what day the judgment was completed, or the writ of fieri facias actually taken out, but upon the rule of the law, "that they shall be deemed complete and binding, to all intents and purposes, by relation."

The moment the law said, "Judgment shall bind purchasers only from the signing," it followed, that in the case of purchasers the time of signing might be shown.

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*If, to invalidate the writ, there was an averment that it issued on a day in the vacation; there the inference would hold, from the case of a judgment, or fieri facias;

(a) 2 Stra. 749.