Anonymous (1793) 3 Mod 248
| Jurisdiction | England & Wales |
| Date | 1793 |
| Year | 1793 |
| Court | High Court |
English Reports Citation: 87 E.R. 163
IN THE COURT KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
case 155. anonymous. In replevin, if the defendants, as bailiffs, make cognizance by attorney, and one of them is an infant, yet it cannot be assigned for error ; for they are in nature of plaintiffs, and sue in autre droit.-l Roll. Abr. 288. Yelv. 58. Cro. Eliz. 378, 569. Cro. Jac. 441. 1 Vent. 102. 1 Lev. 299. 1 Mod. 296. 2 Saund. 212. 5 Mod. 209. 3 Bac. Abr. 141. 8 Mod. 25. Stra. 784. Eeplevin. Three persons made cognizance as bailiffs to A. and so justify the taking of the cattle damage feasant in his ground. The plaintiff replied, that the cattle were taken in his ground, and traverses the taking in the place mentioned in the cognizance. There was judgment for the defendant. Upon which a writ of error was brought. The error assigned was, that one of the bailiffs was an infant, and made cognizance by attorney, when he ought to do it by guardian. Mr. Pollexfen. This might be pleaded in abatement, but it is not error ; for an infant administrator may bring an action of debt by attorney, because he sues in the right of another, and so his infancy shall be no impediment to him. The bailiff in this case is as much a plaintiff as the administrator in the other, for he makes cognizance in the right of another; and in such case, if two are of age and one is not, they who are of age may make an attorney for him who is not. So if there are two executors, one of them of age and the other not, one may make an attorney for the other (a). There is no difference between executors and infants in this case; for executors recover in the right of the testator, and the bailiffs in the right of him who has the inheritance. Besides, the avowants are in the nature of plaintiffs ; arid where-ever a plaintiff recovers, the defendant shall not assign infancy for error. Adjournatur (b). (a) 1 Jac. 2, c. 17. (b) In Hex v. Payne, 1 Show. 12, which appears to be the same case with the present, the Court held, that the being rated to and paying the poor rates was equivalent to notice, and therefore that the pauper gained a settlement in Maiden, although no actual notice was given pursuant to the 1 Jac. 2, c. 17. And with this report agrees S. C, Garth. 28. The statute of 3 Will. & Mary, c. 11, however, seems to have removed all doubt upon this point; for after declaring, that the forty days residence shall be reckoned from the publication of the notice in writing, it...
To continue reading
Request your trial
-
Shatter and his Wife against Friend
...881. Yelv. 2. (i) Cro. Eliz. 541. Godolph. 106. (k) Cro. Jac. 5. (1) 3 Salk. 146. Stra. 127, 144, 606. 2 Term Rep. 87. Ld. Ray. 1403. (to) 3 Mod. 248. 3 Bac. Abr. 141. 1 SHOW. H.B.173. MICHAELMAS TERM, 3 WILLIAM AND MARY. IN B. R. 519 common law, yet no prohibition lies. The cases of Chadro......
-
Cowne v Bowles et Al
...he might have pleaded this in abatement to the conuzance in the replevin, for the avowaiit or conuzant is an actor to that purpose. Fide 3 Mod. 248. 48 E. 3, 10. 1 Rolle's Ab. 781. English Reports Citation: 91 E.R. 86 COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER. Cowne and ......
-
William Bird Senior, and William Bird Junior, against Orms
...and appeared by attorney instead of guardian. Ante, 274. Post. 303.-1 Roll. Abr. 776. 1 Keb. 940. 1 Vent. 102. 2 Saund. 213. 1 Mod. 296. 3 Mod. 248. 5 Mod. 209. Allen, 74. Style, 121. 125. 406. Show. 170. Cro. Car. 471. Error of a judgment in trespass in the Common Pleas, because they appea......
-
The King against The Inhabitants of Malden
...Rep. 758 ; Grimstead v. Marlmve, 4 Term Rep. 717 ; Worledcje v. Manning, 1 H. Bl. Rep. 53, notis ; Steel v. Houghton, 1 H. Bl. Rep. 51. 3 MOD. 248. MICHAELMAS TERM, 4 JAC. 2. IN B. R. 163 The churchwardens of Covent Garden certified under their hands, that such a person was an inhabitant wi......