Mesne profits.

For not delivering of goods pursu

ant to a bill of lading.

On a bond

ture in his right groin, descending into the scrotum, oc-
casioned by the kicks and blows which this deponent
received from the said W. F. whereby this deponent is
rendered utterly incapable of getting his livelihood. And
this deponent further saith, that to the best of his know-
ledge, he never was subject to, nor had a rupture, before
the said assault was made upon him this deponent as
aforesaid; and that the said kicks and blows given him
by the said W. F. are the sole cause of the said rupture.
And this deponent further saith, that he has applied to
several eminent surgeons for advice to be cured of the said
rupture, but has been informed by them that the same
is incurable. And this deponent further saith, that he
knows and is well acquainted with the said W. F. and
that he is in very good circumstances. And this depo-
nent further saith, that he believes the said W. F. soon
intends leaving this kingdom, and that he has not made
this deponent any satisfaction for the said assault.
this deponent J. W. for himself saith, that he hath viewed
the other deponent's right groin, and that he has got a
rupture in his said right groin descending into the scrotum,
which in this deponent's opinion is incurable, and renders
him utterly incapable of following his business.

And

In an action for the mesne profits after recovery in ejectment, a judge may order special bail, if he thinks proper on affidavit of the amount of the damages; but it cannot be done without.

J. B. of, &c. maketh oath, that C. D. is justly indebted unto this deponent in 2701. being the value of one parcel of merchandize received by the said C. D. on board a ship or vessel called the Swift, whereof the said C. D. was commander; and for which the said C. D. as appears to this deponent, and as this deponent verily believes, signed or subscribed a bill of lading, bearing date the of last, thereby undertaking to deliver to this deponent, or his assigns in London, the said parcel of merchandize, which the said C. D. hath not delivered, although the said ship hath long since arrived in the river of Thames.

day

In the sum of 1501. on and by virtue of a certain inmade in Scot- strument in writing, made according to the laws of the kingdom of Scotland, and there called a bond.

land.

Against an underwriter on a policy.

In 901. for an average loss on the said C. D.'s subscription of the sum of 1001. as an underwriter, on this deponent's interest in goods shipped on his own proper account, in the ship J. N. F. late master, on her late voy

age from London to New York, in the prosecution of which said voyage, the said vessel and the greatest part of her cargo were lost.

If an affidavit to hold to bail be sent from Scotland, Scotland or or Ireland, such affidavit, it must be remembered, is to Ireland. contain all the requisites that are essential to affidavits for holding to bail in England; therefore the clause of no offer having been made pursuant to stat. 37 Geo. 3, of bank notes, must be inserted. 7 Term Rep. 376. in notes.

Where an affidavit of debt contained no place in the jurat, but purported to be sworn before the chief justice of the King's Bench in Ireland, and to be signed by him, and such signature was verified by affidavit here: held that it was sufficient foundation for arresting the defendant under a judge's order on mesne process. French v. Bellew and Cullimore, 1 Maule and Selw. 302.

It appears that Alfred the Great, a Saxon king, was

the first that divided England into counties or shires.

They are subdivided into Maritime and Inland. There Maritime and are 19 of the former; seven whereof are situate on the inland.

German Sea, six on the Channel, two at the Severn's

Mouth, and four upon the Irish Sea, or St. George's

Counties palatine, and

Wales.

Channel: those on the German Sea are, Northumberland,
Durham, Yorkshire, Lincolnshire, Norfolk, Suffolk, and
Essex.

Those on the Channel, Kent, Sussex, Hampshire,
Dorsetshire, Devonshire, and Cornwall.

Those at the Severn's Mouth, Somersetshire, and Monmouthshire.

Those in the Irish Sea, Cheshire, Lancashire, Cumberland, and Westmoreland.

The counties of Chester, Durham, and Lancaster, are called counties palatine; and writs issued out of the superior courts of Westminster, are to be specially directed. 2 Str. 1809. Andr. 191. Andr. 191. Vide post.

It was formerly holden that a writ of latitat did not run into Wales, 1 Wils. 193, or the counties palatine. 2 Saund. 193. But a different practice now prevails, 1 Dougl. 213. Perry v.Jones, Lloyd v. Jones, id. ib. which practice is recognized, as to Wales, by the statute 13 Geo.

3. c. 51.

Cinque Ports.

These are five havens that lie in the east part of England, towards France: thus called by way of eminence, on account of their superior importance; as having been thought by our kings to merit a particular regard for their preservation against invasions. Hence they have a particular policy, and are governed by a keeper, with a title of lord warden of the Cinque Ports; which office belongs to the constable of Dover; and their representatives are called barons of the Cinque Ports. The five ports are, Hastings, Romney, Hythe, Dover, and Sandwich; to which Winchelsea and Rye have been since added.

To Hastings belongs, Seaford, Pevensey, Hedney, Winchelsea, Rye, Hamine, Wakesbourn, Creneth, and Forthclipe,

To Romney belongs, Bromhall, Lyde, Oswarstone, Dangemere, and Romenhall.

To Hythe belongs, Westmeath.

To Dover belongs, Folkston, Feversham, and Marge. To Sandwich belongs, Fordiwic, Reculver, Serre, and Deal.

The writ of latitat runs into the Cinque Ports, and is directed to the constable of Dover Castle, or to his deputy, or lieutenant.

PROCESS.

Of the Proceeding by Bill.

THERE are two ways of bringing an action in this court in common cases, by one common person against another, where the defendant is not in actual custodythe one by bill, the other by original writ.

If therefore the defendant reside in Middlesex, or be Proceeding by met with in that county, and the plaintiff proceeds by bill bill. in this court, the first process is called a bill of Middlesex, which is a precept, and not a writ; having only a return, and no teste, nor is it directed to the sheriff 1 Black. Rep.

himself.

In case he reside in, or is to be found in any other county, the first process is called a latitat.

506.

The latitat is a testatum writ, grounded upon the bill Latitat. of Middlesex, supposed to be sued out before, and re

turned non est inventus.

The writ of latitat is in the nature of an original writ, In nature of called a clausum fregit, and its antiquity beyond the an original. memory of man.

It ought to be under the teste of the chief justice, or As to the of the senior judge of the court, if there be no chief teste. justice; and if it issues from any other court, it is to be under the teste of the first in commission. Dalt. c. 132. Finch. 436. Cro. Car. 390.

The writ of latitat should be directed to the sheriff or How to be sheriffs of the county, where the defendant is supposed directed. to be, or, if the sheriffs be parties, to the coroner (or coroners of the county, if two or more,)1 Black. Rep. 506. and if the coroners be parties, to elisors named by the

master.

The latitat may be tested before the cause of action, The teste and and if sued out in term time, it is usually tested on the return of a first day of that term; if sued in vacation, on the last latitat. day of the precedent term; if tested in vacation, it is altogether void, 2 Burr. 967, 954. 5 Bur. 2588. and must be made returnable on a day certain in term time, as on Monday next after the morrow of All Souls, 1 Str.395.

Latitat is the

true commencement of actions

brought by bill of Middlesex, and may

be sued before the cause of action accru

ed, yet if not accrued, may

tender.

See return of writs, ante, and all continued writs must be tested the day the former is returnable. 2 Salk. 699.

As to suing it out before Cause of Action.

Though a latitat may be taken out before the cause of action, yet the party cannot be arrested upon it, until after. Hanway v. Merry, 1 Vent. 28.

Although a latitat may be sued before the cause of action accrued, yet if the cause of action for a debt has not accrued at the time, the defendant may, previous, tender the money, and if the plaintiff reply a latitat issued before the tender made, the defendant may rejoin that there was no cause of action at the time when the latitat issued. For the latitat, in this case, is to be considered as an original writ, when it is replied to the statute of limitations pleaded; or to avoid a tender, it is not the commencement of the suit; and the defendant ought to have the same advantage of it as the plaintiff. The replication, in this case, makes it the commencement of the suit, and therefore to be taken in the nature of an original writ. Wood v. Newton, 1 Wils. 141. And Denison J. agreed, such rejoinder was good. In Foster v. Bonner it was resolved upon solemn argument (which was an action of trespass) that the rule to consider the bill, not the latitat, as the commencement of the suit, is subject to several exceptions; for instance, where the defendant has pleaded, that one of the statutes of limitations had attached ante exhibitionem billæ, the plaintiff may reply a latitat sued out of the preceding term, and the defendant may rejoin, that the latitat was not in fact sued out till the vacation after such preceding term, and after the expiration of the time limited for bringing the action. Cowp. 454. 2 Burr. 950. Johnson v. Smith. See 2 Saund. 1. d. n. 1.

Plaint in an The plaint in an inferior court, is the original and inferior court. commencement of the cause, 1 Leon. 303. and therefore being issued previous to the cause of action, on a writ of error after verdict for the plaintiff, the judg ment was reversed, being substance. Ward v. Honeywood, Dougl. 61.

Latitat if is

tion before

In Foster v. Bonner, which was an action of trespass, sued in vaca- and the latitat issued in vacation before any cause of action accrued, but before the term a cause of action did accrue, the court held, the latitat was only to be considered as process to bring the party into court, and

cause of action accrued.