Page:United States Reports, Volume 1.djvu/423

412 

1789.

Latitat from the King's Bench, or a Clauʃum ƒregit in the Common Pleas, the continuances muft be fet forth to be entered to the time of filing the bill, or declaration, in order to fhew that it was for the fame caufe of action.

This gives rife to the queftion, whether our writs of Capias and Summons  refembly more the Original writs, or the Latitat  and Clauʃum ƒregt:  And, in order to folve this queftion, it will be neceffary to confider the reafon of the difference between thefe writs in England.

The Latitat and Clauʃum ƒregt are both writs of Treʃpaʃs ; yet, by the courfe of the Courts of King‘s Bench and Common Pleas, the Plaintiff may ground upon them declarations in any perfonal actions. But, when the declarations is in Aʃʃumpʃit (for inftance) a writ of Treʃpaʃs iffued within the fix years, could not be prefumed to be a writ that iffued in that caufe, unlefs, it was further fewn in the replication, that it was taken out with an intention to declare in that action ; and, as evidence of that intention, that the continuances were entered from the time of iffuing it to the filing the bill or declaration. But, in the cafe of an Original proper to the action, that is never neceffary, becaufe it the declaration was in Aʃʃumpʃit, the original would fhew it was iffued in cafe: if the declaration was upon a bond, the original would fhew it was iffued in debt ; and, confequently, that it was a proper and legal foundation for the action: And the continuances are not neceffary to be fhewn asa proof that the writ as correfponded with the declaration, the law prefumes it was for the fame caufe of action, unlefs the contrary is fhewn.

That this is the reafon of the diftinction between Originals, and the writs of Latitat and Clauʃum ƒregit,  to this purpofe, will appear from this ; that whenever the writ which commences the action, is of fuch a nature as to correfpond with the declaration, we find it will be fufficient to fet it forth without the continuances, although it be not an original:  And, on the contrary, whenever the writ does correfpond with the declaration, it will not fupport the replication without the continuances, although it be an original.  An inftance of the firft kind is the attachment of privilege in the Common Pleas, which will be found by the precedents, always to fpecity the nature of the particular action, whether in debt, or cafe, which is afterwards declared upon ; and hence, we find, in 1 Wilʃ. 168. the replication fhewing only the time of iffuing the writ without the continuances, will be fufficient. So, in the reverfed cafe, when a common Clauʃum ƒregit is the writ, although it be an original writ iffuing out of Chancery, yet, not being adapted to the action of Aʃʃumpʃit or debt, being only a foundation for the capias in the Common Plea and intended merely to give that Court jurifdiction, it will not be prefumed to be the foundation of fuch an action, unlefs the continuance are fet forth from the time of iffuing the writ. Hence it is evident, that it is from the ment