Cabell v Vaughan
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 386
COURT OF KING'S BENCH
See Kendall v. Hamilton, 1879, 4 App. Cas. 543.
[288] 43. cabell versus vaughan. Pasch. 21 Car. II. Kegis, Eol. 369. [See Kendall v. Hamiltm, 1879, 4 App. Cas. 543.] Devonshire, to wit.-Be it remembered that heretofore, to wit, in the term of St. Hilary last past, before our lord the King at Westminster came Richard Cabell Esquire, late Sheriff of the said county of Devon, by Richard Thome his attorney, and brought here into the Court of our said lord the King then there his certain bill against John Vaughan, otherwise called John Vaughan of Ottery St. Mary in the county of Devon Eaquire, otherwise called John Vaughan of Ottery St. Mary in the county of Devon Esquire, otherwise called John Vaughan of Ottery St. Mary in the county of Devon Esquire, in the custody of the marshal, &c. of a plea of debt; and there are pledges of prosecution, to wit, John Doe and Richard Roe; which said bill follows in these words, to wit; Devonshire, to wit, Richard Cabell Esquire, late Sheriff of the said county of Devon, complains of John Vaughan, otherwise called * John Vaughan of Ottery St. Mary in the county of Devon Esquire, otherwise called John Vaughan of Ottery St. Mary in the county of Devon Esquire, otherwise called John Vaughan of Ottery St. Mary in the county of Devon Esquire, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea that he render to him four thousand pounds (1) of lawful money of England, which he owes to, and unjustly detains from, him, for this, to wit, that whereas the said John, * See ante, 14, Bennet v. Filkins, n. (1). (1) Hence it appears that the plaintiff may declare upon several bonds in the same count or declaration ; so Lill. Ent. 167 ; and the different sums ought in strictness to be demanded in one entire sum exactly corresponding with them, as is done in this case. But this strictness is now dispensed with : for the declaration is held good, though it specifies either a greater or less sum than is demanded. 1 H. Black. 249, M'Quillin v. Cox. However, it is still better to adhere to this form.(a) (a) The case of M'Quillin v. Cox was argued on the ground of a variance between the sum stated in the recital of the writ, and the aggregate amount of the sums demanded in the declaration ; but the Court held the variance immaterial, because a plaintiff may in debt declare for a less sum than he has demanded in hia writ. Whether if a greater sum be demanded in the declaration than is stated in the recital of the writ, advantage might not be taken by plea in abatement, seems not to be fully settled. In proceedings by bill in K. B. it was held that the sum mentioned in the queritur, whether greater or less than those in the declaration, was wholly immaterial, because the queritur itself might be wholly rejected. 11 East, 62, Lord v. Houstoun. See 2 Saund. 210 b. c. note. [So, since the Uniformity of Process Act, where a declaration in debt by the assignees of an insolvent debtor stated that the plaintiffs, assignees, &c. complained of the defendant, " who has been summoned to answer the plaintiffs, assignees as aforesaid, in an action of debt, and they demand of the defendant the sum of 401., which he owes to and unjustly detains from them, &c.;" and it was objected, on special demurrer, that the plaintiffs had improperly declared in the debet and detinet; it was held on the authority of Lord v. Houstoun, that the objectionable part might be rejected as surplusage. And the Court said, that looking also at the forms of the commencement of declarations, given by the rules M. T. 3 W. 4, drawn up by Lord Tenterden under the 18th section of the Act, it appeared that they were not intended to require any recital of the writ. 4 Dowl. 513, Fe.rgitssmi v. Mitchell. 2 Cr. M. & R. 687, S. C. And it must be observed that the form of issue given by the rule H. T. 4 W. 4, requires no recital of the writ, nor any statement of the form of action. Ibid. 3 Dowl. 188, Ball v. Hamlet. 1 Cr. M. & R. 575. 5 Tyrw. 201, S. C.] 1WMS.8AU1TO.289. TB1N. 22 CAR. II. REGIS 387 on the 16th day of November, in the 20th year of the reign of our Lord Charles the Second, now King of England, &c. at Honyton, in the county aforesaid, by his certain writing obligatory, sealed with the seal of him the said John, and to the Court of our said lord the King, now here shewn, the date whereof is the same day and year, acknowledged himself to be held and firmly bound to the said Eichard in one thousand and six hundred pounds, parcel of the said four thousand pounds, to be paid to the said Richard when he the said John should be thereunto required. And whereas also the said John afterwards, to wit, on the said 16th day of November, in the said 20th year of the reign of the said now King, at Honyton aforesaid, in the county aforesaid, by his certain other writing obligatory, sealed with the seal of him the said John, and to the Court of our said lord the King, now here shewn, the date whereof is the same day and year aforesaid, acknowledged himself to be held and firmly bound to the said Richard in one thousand and two hundred pounds, likewise parcel of the said four thousand pounds, to be paid [289] to the said Richard when he the said John should be thereto requested. And whereas also the said John afterwards, to wit, on the 17th day of November, in the 20th year of the reign of our said lord the now King, at Honyton aforesaid, in the county aforesaid, by his certain other writing obligatory, sealed with the seal of him the said John, and to the Court of our said lord the King, now here shewn, the date whereof is the same day and year, acknowledged himself to be held and firmly bound to the said Richard in another one thousand and two hundred pounds, residue of the said four thousand pounds, to be paid to the same Richard when he the said John should be thereunto requested: yet the said John (although often requested) hath not yet paid the said four thousand pounds to the said Richard, but to pay the same to him has hitherto altogether refused, and yet refuses, to the damage of him the said Richard of forty pounds: and therefore he brings suit, &c. And now at this day, to wit, Wednesday next after fifteen days of Easter in this same term, until which said day the said John Vaughan had leave to imparl to the said bill, and then to answer, &c. before our lord the King at Westminster, come as well the said Richard by his said attorney, as the said John Vaughan by Robert Rous his attorney: and the said John Vaughan defends the wrong and injury when, &c. and prays oyer of the said writing obligatory in the said bill first mentioned ; and it is read to him in these words, to wit: " Know all men by these presents, that we John Vaughan, of Otterie St. Mary, in the county of Devon, Esquire, Warwick Ledgingham of the same, Esquire, and Hannibal Follett, junior, of the same, gent., are held and firmly bound to Richard Cabell, Esquire, sheriff of the county aforesaid, in one thousand and six hundred pounds of good and lawful money of England, to be paid to the same sheriff, his executors or administrators, to which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, firmly by these present, sealed with our seals, dated the 16th day of November, in the 20th year of the reign of Charles the Second, now King of England, &c., and in the year of our Lord, 1668."(2) He also prays oyer of the writing obligatory in the said bill secondly mentioned, and it is likewise read to him in these words, to wit: " Know all men by these presents, that we John Vaughan, of Ottery St. Mary, in the county of Devon, Esquire, Warwick Ledgingham of the same, Esquire, and Hannibal Follett, junior, of the same, gent., are held and firmly bound to Richard Cabell, Esquire, Sheriff of the county of Devon, in one thousand and two hundred pounds, to be paid to the same sheriff, his executors, or administrators, to which payment well and truly to be made we bind ourselves, our heirs, and executors, firmly by these presents, sealed with our seals, dated the 16th day of November, in the 20th year of thejreign of the Lord Charles the Second, now King of England, &c., and in the year of the [290] Lord 1668." He also prays oyer of the last writing obligatory in the said bill last mentioned, and it is likewise read to him in these (2) As the defendant only craves oyer of the bond, the plaintiff is neither obliged to give him oyer of the condition, nor is the defendant, though the plaintiff should give him oyer of the condition, bound to set it out. For the bond and the condition are different instruments, and oyer must be demanded of each of them to entitle the defendant to it. See ante, 9, note (1), Jevens v. Harridge. 388 CABELL V. VAUGHAN 1WMS. SATOD. 290. words, to wit: " Know all men by these presents, that we, John Vaughan, of Ottery St. Mary, in the county of Devon, Esquire, Warwick Ledgingham of the same, Eaquire, and Hannibal Follett, junior, of the same, gent., are held and firmly bound to .Richard Cabell, Esquire, Sheriff of the county of Devon, in one thousand and two hundred pounds of good and lawful money of England, to be paid to the same sheriff, his executors, or administrators, to which said payment well and faithfully to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents, sealed with our seals, dated the 17th day of November, in the 20th year of the reign of our Lord Charles the Second, now King of England, &c., and in the year of the Lord 1668." Which being read and heard, the said John says, that he, by reason of the said several writings obligatory, ought not to be charged (3) with the debt aforesaid, because he says that the declaration aforesaid, and the matter in the same contained, are not sufficient in law to maintain him the said...
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