When the plaintiff replies a latitat, or capias, sued out within time, he must show that it has been returned and continued by vicecomes non misit breve. It must be a continuance of the same writ or process which was originally sued out, and must appear on the record to be so.(a) It is, however, to be observed, that in Whitehead v. Buckland, Sty. 373. the plaintiff replied an original, but did not show the continuances upon the roll. It was held that the plea was plain, and that it was not necessary to show all the continuances, for there was an appearance. [3] In the case of Every v. Carter,(b) the plaintiff replied a clausum fregit within time, but did not plead the continuance. And where the plaintiff, an attorney of the common pleas, sued the defendant by an attachment of privilege, and in Michaelmás term, 17 Geo. II. declared that the defendant was attached by writ of privilege, &c. and to the statute pleaded, replied, that he sued out a writ of privilege the 7th day of July, 16th Geo. II. and that the said defendant did make such promise within six years next before the suing forth the said writ of privilege. To this replication there was a demurrer, and joinder in *demurrer. The court of common pleas were of [*233] opinion, that an appearance to process cures all er [3] Where the plaintiff replies an original writ sued out, he must shew it to have been continued up to the time of trial. Admr. of M'Dowell vs. Exors. of Goodwyn, 2 Rep. Const. Ct. So. Car. 441. A Replication, stating that the plaintiff sued out a writ for the same cause of action, within the time prescribed by the Act, which writ was executed and returned, and went off the Docket for want of formality, is no answer to the bar set up by the plea of the Act of Limitations. Callis. vs. Waddy, 2 Munf. Rep. rors and defects therein, and gave judgment for the plaintiff below. A writ of error was brought, and the general errors assigned. For the defendant in error it was argued, that an attachment of privilege in the common pleas is in the nature of an original writ, and if an original writ is replied to the plea of the statute of limitations, it is sufficient to show the teste of it when issued, without any continuances. And of such opinion was the court.(a) The authority of this case is extremely doubtful; for, in an action of assumpsit for fees due to an attorney, the defendant pleaded non assumpsit infra sex annos. The plaintiff replied, that on such a day, two years before, he had sued out an attachment of privilege against the defendant; upon which writ, taliter processum fuit, that the defendant (on such a day in Hilary term, anno 2 Wm. &c.) appeared, and the plaintiff declared against him, modo et forma, &c. And upon demurrer to this replication it was held ill, because the plaintiff did not set forth any continuance of this writ of attachment, (per vicecomes non misit breve,) which was sued out above two years before: for it is impossible that the defendant should appear in Hilary term, anno 2 Wm. to a writ returnable two years before; and no other writ is set forth by the plaintiff. But if the plaintiff, after the taliter processum fuit, had shown the last attachment, and the return thereof, upon which, in truth, the defendant did appear, it had been well enough, without showing any of the continuances.(b) [*234] *And where, to an action on the case on promises, the defendant pleaded the statute of limitations; the plaintiff replied a clausum fregit sued, returnable in the common pleas, before the six years, ea intentione to declare in this action upon the case; and did not show that the writ was continued: and upon demurrer, judgment was given for the defendant.(a) And so in Karver v. James, (b) and Stratton v. Savignac, (c) and in the case of Kinsey v. Heyward, (d) it was determined, both in the king's bench and in parliament, that an original must be returned and continued. And it does not appear in the report of the case in Wilson, that any one of these cases were cited. But it does not seem necessary, in replying an original, or a latitat, to do so with a prout patet per recordum. In Whitehead v. Buckland, Sty. 373, one of the causes of de murrer was, that plaintiff saith he hath sued out his original, but doth not say, prout patel per recordum. And in an action on the case on promises, the defendant pleaded the statute of limitations, and that non assumpsit infra sex annos. The plaintiff replied, that such a day he took out a writ of latitat, and so continueth it down by a vicecomes non mi sit breve, and did not conclude prout patet per recordum, for which cause the defendant demurred. But, per Curiam, and the clerks -This is needless; the latitat roll being only for the private use of the court, and no record. (e) *It has been held, that if the bill of Middlesex be [*235] sued within the time, the replication will not answer the plea of the statute of limitations, if it show the bill to be returned on the same day it was sued out. Ld. Raym. 772. Green v. Rivell. But this is not so at the present day; for it is the constant practice to sue out writs returnable on the same day; and the case of Green v. Rivett was overruled by Oxlade v. Davidson, 4 T. R. 611. The plaintiff may reply a latitat, or (a) Ld. Raym. 701. (b) Wilson, 255. (c) 3 B. & P. 330. capias, without showing either a bill of Middlesex, or original preceding. Coles brought an action of trover and conversion against Sibsye. The defendant pleaded the statute of limitation of aetions in bar of the action. The plaintiff replied, that he took out a latitat out of this court against the defendant within the time limited by the statute, which still continued depending. Rolle, Ch. J. said, A latitat out of this court is in the nature of an original in the common pleas, and so hath been always held to be.(a) In Hollister v. Coulson, Str. 550. the defendant pleaded non assumpsit infra sex annos; the plaintiff replied a latitat; and the court, on demurrer, held it well enough, without showing a bill of Middlesex. Assumpsit upon a promissory note, payable to B. or order, signed by the defendant, and endorsed to the plaintiff, the defendant pleaded the statute of limitations; the plaintiff replied a latital, sued out within the six years, and regularly [*236] continued, &c. to which there was a rejoinder, and a demurrer to the rejoinder. Which being held ill, it was objected, for the defendant, that the plaintiff ought to have shown a bill of Middlesex as a foundation of the latitat, the latitat referring to it. But adjudged, the replication of the latitat, without showing a bill of Middlesex precedent, was sufficient to avoid the statute. And so it was adjudged, Mich. 9 Geo. B. R. Hollister v. Coulson, Str. 550. See Styles, 156. 1 Sid. 53. 60. Judgment for plaintiff. So, in Karver v. James, Willes, 257. the court all agreed that the capias[1] was sufficient, without set (a) Sty. 156. [1] To a plea of the Statute of Limitations, it is not a good replication, that a suit for the same demand was commenced in a court in another state, and discontinued within six years. The com ting forth the original; it being the constant course of the court to take out a capias without an original.(a) We have seen, that when the statute begins to operate, it runs over all mesne acts:(b) therefore, if the statute of limitations be pleaded to an action brought by an executor on a promise made to his testator, the six years are computed from the time when the cause of action arose, and not from the time of obtaining the probate of the will; and in such case, the plaintiff cannot. reply a promise to himself, as that would be clearly a departure in pleading.[2] To an action on the case on several promises, all laid to be made to the testator in his life-time, with a profert of the letters testamentary, the defendant pleaded, that he did not promise within six years before the obtaining of the original writ of the plaintiffs, who replied the time of suing out the writ; [3] and that, mencement of a suit, to defeat the Statute of Limitations, must be the same suit, to which the plea is pleaded. Delaplaine vs. Crowninshield, 3 Mass. Rep. 329. [2] Where to a plea of the Statute of Limitations, the plaintiff replies that both plaintiff and defendant were beyond seas, at the time the cause of action accrued, to wit in another state, a rejoinder of the Statute of Limitations of such other state is a departure from the plea, and fatal on demurrer. Harper vs. Hampton, 1 Harr. & Johns. Rep. 453. [3] To an action of debt on bond, the defendant relying on the Statute of Limitations of New-Jersey, [Rev. L. 411. s. 6.] pleaded that the cause of action did not accrue within sixteen years, next before the commencement of said Action. Replication, That after the making the writing obligatory, and before the commencement of the action, to wit, &c. on, &c. the defendant acknowledged himself to owe to the plaintiff the sum of, &c. in the said writing obligatory mentioned. To this replication the defendant demurred; and the plaintiff joined in demurrer. PEN-. NINGTON, J. delivering the Opinion of the Court, said, "The "replication, must contain an answer to the plea; can it be said |