Hancocke vic. Company v Prowd, Administrator of Yope
| 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. 475
COURT OF KING'S BENCH
1 WMS. 8ATOD. 338. MICH. 21 CAR. II. REGIS 475 [328] 57. hancockb Vie. &o. versus prowd, administrator of yope. Pasch. 21 Car. II. Eegis, Roll 440, 441. Salop, to wit.-Be it remembered that heretofore, to wit, in the term of Easter last past, before our lord the King at Westminster came Thomas Hancocke gent, being one of the attornies of the Court of our lord the King before the King himself, according to the liberties and privileges for such attornies from time whereof the memory of man ie not to the contrary used and approved of in the same, present here in Court in his proper person, and brought here into the Court of our said lord the King then thera hia certain bill against Richard Prowd administrator of all and singular the goods and chattels, rights and credits, which were of William Yope of Ateham, in the county of Salop gent, lately deceased, who died intestate, as it is said, 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; Salop, to wit, Thomas Hancocke gent., being one of the attorniea of the Court of our lord the King before the King himself, according to the liberties and privileges for such attornies from time whereof the memory of man is not to the contrary used and approved of in the same Court, present here in Court in his proper person, complains of Richard Prowd administrator of all and singular the goods and chattels, rights and credits, which were of William Yope of Ateham, in the county of Salop, gent, lately deceased, who died intestate, as it is said, 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 401. of lawful money of England, which he unjustly detains from him, for this, to wit, that whereas the said William Yope in his life time, to wit, on the 14th day of September, in the 19th year of the reign of our Lord Charles the Second, now King of England, at Berrington, in the county aforesaid, by his certain writing obligatory, sealed with the seal of him the said William, 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 Thomas in the said 401. to be paid to the same Thomas when he the said William should be thereunto required : yet the said William in his lifetime, and the said Richard after the death of him the said William, (although often required,) has not paid, nor hath either of them paid, the said 401. to the said Thomas Hancocke, but to pay the same to him have hitherto altogether refused ; and the said Richard hath yet hitherto altogether refused to pay the same to the said [329] Thomas, and still refuses, and unjustly detains it, to the damage of him the said Thomas of 101.; and therefore he produces suit, &c. And now at this day, to wit, Wednesday next after fifteen days of Easter in this same term, until which day the said Richard Prowd 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 Thomas Hancocke in his proper person, as the said Richard Prowd by William Walthatn, his attorney; and the same Richard defends the wrong and injury when, &c., and says that the said Thomas ought not to have or maintain his said action thereof against him, because he says that one John Wood, one of the attornies of the Court of our lord the King of the Bench, heretofore, to wit, in the term of St. Hilary, in the 19th and 20th years (1) of the reign of our said lord the now King, before Sir Orlando Bridgman Knight and Baronet, and his companions, then justices of our said lord the King of the Bench at Westminster, by the consideration of the same Court (1) The plea is bad, unless it states in what term and year of the reign, or at least of our lord, and in what Court the judgment was obtained. 1 Mod. 50, Jordan v. Fawcett. S. C. 1 Sid. 449. 1 Vent. 76. 2 Keb. 632.(a) (a) [By Reg. Gen. H. T. 4 W. 4, Pleading, No. 3, all judgments shall be entered of record of the day of the month and year, whether in term or vacation, when signed. Therefore, a plea of a judgment recovered since this rule should state on what day and year it was obtained.] 476 HANCOCKE V. PROWD 1 WMS. SAUND. 330. recovered(2) against the said William Yope in his lifetime, by the name of William Yope, late of Atcham, in the county aforesaid, gent., otherwise called William Yope of Atcham, in the county of Salop, gent, as well a certain debt of 201. as 30s. which were adjudged to the same John in the same Court for his damages which he had on occasion of the detention of that debt whereof he was convicted, as by the record and process thereof, remaining in the said Court of our said lord the King of the Bench aforesaid, at Westminster aforesaid, more fully appears. And the said Kichard further saith that one Thomas Clevely, gent, heretofore, to wit, in the aaid term of St. Hilary, in the said 19th and 20th years of the reign of our said lord the now King, before the said Sir Orlando Bridgman Knight and Baronet, and his companions, then justices of our said lord the King of the Bench aforesaid, at Westminster aforesaid, by the consideration of the same Court recovered against the said William Yope in his lifetime, by the name of William Yope late of Atcham, in the county aforesaid, gent., otherwise called William Yope, of Atcham, in the county of Salop, gent, as well a certain debt of 1001. as 50s. which were adjudged to the said Thomas Clevely in the same Court for his damages which he had on occasion of the detention of that debt whereof he was convicted, as by the record and process thereof, remaining in the said Court of our said lord the King of the Bench aforesaid, at Westminster aforesaid, more fully appears. And the said Richard further saith, that the said William Yope in his lifetime, to wit, on the 8th day of December, in the 15th year of the reign of our said lord the now King, at the town of Salop, in the county aforesaid, by his certain writing obligatory (3) sealed with his seal, bearing date the same day and year, acknowledged himself to be held [330] and firmly bound to one Mary Jones, widow, in 1601. to be paid to the said Mary when he should be thereunto requested; which said 1601. at the time of the death of the said William Yope, was a true and just debt (4) of him the said William, and was due and unpaid to the said Mary : whereupon the said Mary, for the recovery of the said 1601. after the death of the said William Yope, to wit, on the 3d day of April, in the 20th year of the reign of our said lord the now King, sued out of the Court of Chancery of our said lord the King (the said Chancery then being at Westminster aforesaid) a certain original writ of our said lord the King against him the said Richard, as administrator of the goods and chattels which were of the said William Yope, by the name of Richard Prowd, late of the town of Salop, iti the county aforesaid, draper, administrator of the goods and chattels which were of William Yope, gent., who died intestate, &c. lately called William Yope, of Atcham, in the county of (2) This seems to be the general form of pleading a judgment obtained against the testator or intestate in his lifetime. Winch. Ent. 336. Clift. Ent. 162, pi. 23, 170, pi. 28. Lib. Plac. 157, pi. 102. Lill. Ent. 117. See 1 Wils. 318, Murray v. Wilson, arrj. (3) But in pleading a judgment obtained against the executor himself, whether on bond or otherwise, formerly it was sometimes the practice, and still is, to set out the debt which is the consideration of the judgment in the plea, as the defendant has done in this case. Clift. 160, pi. 21, 161, pi. 22, 163, pi. 24, and other entries there from page 163-183. Lill. Ent. Ill, 119, 158, 159. However, in Co. Ent. 149, this allegation is omitted, and the plea held good on demurrer. It is also omitted in Co. Ent. 269. 2 Brown's Ent. 96. Lib. Plac. 140, pi. 54, 149, pi. 78, 179, pi. 135. And in 1 Lutw. 662, Robinson v. Corbett, an objection was taken that this allegation was omitted in that case; but the Court overruled the objection, and held it not necessary to be stated. (4) It is held not to be necessary to aver that the debt, for which the judgment has been obtained, was a true and just debt, although it is usual to make such an allegation in the plea. For if the debt were not a just one, the other side may shew it in the replication. Cro. Eliz. 471, Further v. Further. 1 Lev. 200, Palmer v. Lawstm. S. C. 1 Sid. 333. Garth. 8, Lake v. Raw. 1 Lutw. 662, Robinsim v. Carbett. 1 Str. 410, Williams v. Fowler. Skyn. 586. For the same reason an averment that the judgment remains in farce seems unnecessary. It is omitted in Winch. Ent. 266. 2 Brown's Ent. 89, 92, and in the opinion of Lutwich is unnecessary; 1 Lutw. 450, Bell v. Bolton; though the majority of the Court thought the want of it a good exception. 1WMS. SADSD. 331. MICH. 21 CAB. II. REGIS 477 Salop, yeoman, of a plea of debt on demand of the said 1601., to the then Sheriff of Salop directed ; by which said writ our said lord the now King commanded the said then Sheriff of Salop that he should command the said Richard that justly and without delay he should render to the said Mary the said 1601. which he then detained from her, as she said; and unless he did so, and the said Mary should make the said sheriff secure of prosecuting her claim, then the said sheriff should summon by good summoners him the said Richard that he should be before the justices of our said lord the King at Westminster aforesaid, from the day of Easter in one month then next following, to shew wherefore he had not done it, and that he should have then there the summonses and that writ, &c. At which day...
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