Combe, Esq. v Pitt
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1764 |
| Date | 19 November 1764 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 907
IN THE COURT OF KING'S BENCH
S. C. I Black. Rep. 437, 523.
Applied, Girdlestone v. Brighton Aquarium, 1878-79, 3 Ex. D. 143; 4 Ex. D. 107; Migotti v. Colvill, 1878, 4 C. P. D. 234; Clarke v. Bradlaugh, 1881-83, 8 Q. B. D. 67; 8 App. Cas. 354.
combe, esq. versus pitt, Monday, 20th June, 1763, and Tuesday 21st ditto. [S. C. Black. Rep. 437, 523.] Another action of the same term unless actually prior in point of time, cannot be pleaded in abatement. Vide ante, p. 1335, and post, 1586, and 3 Burn. 361. [Applied, Girdlestone v. Brighton Aquarium, 1878-79, 3 Ex. D. 143; 4 Ex. D. 107; Migotti v. Golvill, 1878, 4 C. P. D. 234 ; Clarice v. Bradlaugh, 1881-83, 8 Q. B. D. 67; 8 App. Cas. 354.] This was an action of debt for 15001. brought by Richard Combe, Esq. one of the -candidates for member of Parliament at the last *3 election for Ivelchester, against Benjamin Pitt, for unlawfully corrupting three several voters to give their votes for Mr. Lockyer and Lord Percival. The declaration was of Michaelmas term, 3 G. 3, with a memorandum referring to Saturday next after the morrow of All Souls. [1424] The defendant pleads, in abatement, that in this same term of St. Michael, before the King at Westminster came one George Lake and exhibited his bill against the defendant of a plea of debt for 4001. for the same cause of action, and for the same identical offences. It was Tr. 8, 9 G. 2. *2 They were the only Judges that were in Court. *3 V. 2 G. 2, c. 24, s. 7. 908 COMBE V. PITT 3 BURB. 1B. The plaintiff replies, that after the committing of the said several offences in his bill mentioned, and long before the day of exhibiting the same bill, and also before the day of exhibiting the said George Lake's bill, that is to say, on the 30th day of June 2 G. 3, he the said Richard Combe, for the recovery of his aforesaid debt, sued forth out of the Court of our lord the now King before the King himself a certain writ of our said lord the now King called a latitat, against the said Benjamin Pitt, directed to the then Sheriff of the county of Surry, by which said writ our said lord the now King, commanded, &c. so that he might have his body at Westminster on Saturday next after the morrow of All Souls then next coming, to answer to the said Richard Combe in a plea of trespass, and that the said sheriff should then have there that writ: which said writ he the said Richard Combo sued forth with intent, &c. And that the said Benjamin Pitt, afterwards and before the return of the said writ, to wit, on the 29th day of July in the second year aforesaid, was in due manner served with the copy of the said writ, according to the form of the statute in such case made and provided; and that he the said Benjamin Pitt afterwards at the return of the said writ, to wit, on Saturday next after the morrow of All Souls now last past, appeared in the said Court here to the writ aforesaid, &c. and that thereupon the said R. Combe, in this present Michaelmas term, to wit, on the said Saturday next after the morrow of All Souls, according to his intention aforesaid, exhibited his aforesaid bill against the said Benjamin, in form aforesaid, for the recovery of his aforesaid debt above demanded. And this he is ready to verify. Wherefore he prays judgment, and that his said bill may bo adjudged good; and that the said Benjamin Pitt may answer over thereto, &c. The defendant rejoins, that after the committing of the said supposed offences iit the same bill mentioned, and long before the day of exhibiting the said respective bill* of the said Richard Combe and George Lake, that is to say on the said 30th day of June, in the 2d year of the reign of our lord the now King, the said G. Lake sued forth out of the Court of our lord the King, before the King himself (the said Court being then and still at Westminster, in the county of Middlesex) a certain writ of our said lord the King called a latitat, against him the said Benjamin, di-[1425]-rected to the then Sheriff of the county of Surry, by which said writ our said lord the now King commanded the then said sheriff, &c. so that he might have his body before our said lord the King at Westminster, on Saturday next after the morrow of All Souls then next coming, to answer to the said George Lake, in a plea of trespass, and that the said sheriff should then have there that writ. And that afterwards, and before the return, of the said writ, and before the said Benjamin was served with a copy of the said writ so sued out by the said Richard, or had any notice of that writ being sued out or intended to be sued out, to wit, on the 7th day of July, in the 2d year aforesaid, he the said Benjamin was served with a copy of the said writ so sued by the said George Lake, with an English notice at the bottom thereof, according to the form of the statute in such case lately made and provided ; and that in obedience to the said writ, he the said Benjamin, according to the course and practice of the said Court, at the return of the said writ so sued out by the said George Lake, to wit, on Saturday next after the morrow of All Souls now last past, appeared in the said Court here, to the said writ so sued out by the said George Lake; and that thereupon the said G. Lake, in the said term of St. Michael, to wit, on the Saturday next after the morrow of All Souls now last past, exhibited his aforesaid bill against the said Benjamin in form aforesaid, for the recovery of the supposed debt by him demanded as aforesaid. And this the said Benjamin is ready to verify. Wherefore, as before, he prays judgment of the said bill of the said R. Combe, and that the same may be quashed, &c. The plaintiff surrejoins, that by the course and practice of this Court, writs of latitat sued out after the end of any term are tested as of the term next preceding the time of their being so sued out: but he avers that the said writ of latitat above alledged to have been sued forth out of the said Court here by the above-named George Lake, although the same was tested on the 30th day of June aforesaid, in the said Ud year of His present Majesty's reign, being the last day of Trinity term in that year, was really and in fact sued forth on the third day of July in the same year, arid not before; and that the aforesaid writ of latitat which he the said Richard sued forth out of this Court as aforesaid, and which was tested on the 30th day of June aforesaid in the said second year of His present Majesty's reign was really and in fact sued out 3 BURR. 1126. COMBE V. PITT 909 by the said Richard against the said Benjamin for the cause aforesaid, long before the said writ of latitat in the aforesaid rejoinder mentioned, was really and truly sued out by the said George Lake, that is to say, on the first day of July in the said 2d year of His said Majes-[1426]-ty's reign, to wit, at Ivelchester aforesaid : and that he the said Richard afterwards with all convenient speed, to wit, on the day and year in the above replication for that purpose mentioned, did serve a copy of his said writ upon the said Benjamin Pitt, and on the appearance of the said Benjamin thereto exhibited his aforesaid bill, and declared thereupon against the said Benjamin for the cause and in the manner aforesaid : and this the said Richard is ready to verify. Therefore he prays judgment that his aforesaid bill may be adjudged good, and that the said Benjamin Pitt may answer over thereto. To thia surrejoinder the defendant demurs specially; and shews for cause, 1st. That it does not sustain the above replication of the said Richard; but it is a departure therefrom, in this, that by the said replication the said Richard, in .order to maintain a priority of suit, hath pleaded and insisted, "that he sued out a writ of latitat in this cause against the said Benjamin Pitt on the 30th day of June in the 2d year of the reign of His present Majesty ;" and yet by his said surrejoinder he hath insisted " that such writ of latitat was sued out at a different time, to wit, on the first day of July, in the 2d year aforesaid;" and also for that the said Richard hath not traversed or denied...
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