Holdipp v Otway
| 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. 802
COURT OF KING'S BENCH
[102] 18. holdipp versus otway. Trin. 21 Car. II. Eegis, Rot. 1161. Writ of error from the Common Pleas to the King's Bench. Our lord the King has sent, to his beloved and trusty Sir John Vaughan, Knt. his Chief Justice of the Bench, his writ close, in these words, to wit; Charles the 2 WMS. SAUKD. 103. PASCH. 22 CAR. II. REGIS 803 Second, by the grace of God, of England, Scotland France, and Ireland, King, defender of the faith, &c. to our beloved and trusty Sir John Vaughan Kut., our Chief Justice of the Bench, greeting; because in the record and proceedings, and also in the giving of judgment, in a plaint which was in our Court before Sir Orlando Bridgrnan Knight and Baronet, and his companions, then our justices of the Bench, by our writ, between John Otway Esq. and Henry Holdipp, late of Overtoil in the county of Southampton, executor of the will of Cornelius Dowse gent., lately called Cornelius Dowse af Overtoil in the county of Southampton, for that the said Henry should render to the said John 681., as it is said, manifest error hath intervened to the great damage of the said Henry, as by his complaint we are informed : we being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, that if judgment be thereupon given, then you send to us distinctly and openly, under your seal, the record and proceedings aforesaid, with all things concerning the same, and this writ, so that we may have them in 15 days from the day of St. Martin, wheresoever we shall then be in England, that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right, and according to the law and custom of England, ought to be done. Witness ourself at Westminster, the 18th day of November, in the 20th year of our reign. shelberry. The answer of Sir John Vaughan, Kut. the Chief Justice within named.-The record and proceedings of the plaint, whereof mention is within made, with all things concerning the same, I send to our lord the King wheresoever, &c. at the day within contained, in a certain record to this writ annexed, as within I am commanded. Pleas at Westminster before Sir Orlando Bridgraan Knight and Baronet and his companions, Justices of our lord the King of the Bench, of the term of the Holy Trinity, in the 19th year of the reign of our Lord Charles the Second, by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. lioll 792. [103] London to wit, Henry Holdipp, late of Overton in the county of Southampton gent., executor of the will of Cornelius Dowse gent, lately called Cornelius Dowse of Overton, in the county of Southampton, was summoned to answer John Otway Esq. of a plea, that he render to him 681. which he unjustly detains from him, &c. And whereupon the said John, by Richard Buckett his attorney, says, that whereas the said Cornelius in his life-time, to wit, on the 24th day of November, in the year of our Lord 1650, at London, in the parish of St. Botolph, Bishopgate, within the ward of Bishopgate, by his certain bill, which, sealed with the seal of the said Cornelius, the said John brings here into Court, the date whereof is the same day and year aforesaid, acknowledged himself to owe and be indebted to the aaid John in the said sura of 681., which said sum of 681. the said Cornelius by the said bill covenanted and agreed to pay to the said John and his assigns, as soon as several bills of charges of the said Cornelius expended in prosecuting several suits at law and in equity for Mr. Eobert Biggs of Fareham in the county aforesaid deceased, and for Margery Eiggs, late of Winchester in the said county, widow, deceased, should be audited, debated .and settled by two attornies indifferently to be chosen by both parties, to examine and state the account of the said bills of charges, the said John Otway satisfying and paying the said Cornelius his proportionable part, namely one third part of the said bills to be in form aforesaid debated and settled as by the said bill more fully appears. And the said John Otway, protesting (1) that he the said John, from the time of (1) A protestation is defined to be, a saving to the party who takes it from being concluded by any matter alleged, or objected against him on the other side, upon which he, cannot take issue. Plowd. 276 b. Gmysbrook v. Fox. Finch, L. 359, 366.(o) Or, as expressed by Lord Coke, it is a safeguard, which keeps the party from (a) [By Eeg. Gen. H. T. 4 W. 4, r. 12, "no protestation shall hereafter be made in any pleading; but either party shall be entitled to the same advantage in that or other actions, as if a protestation had been made." It is stated by an eminent writer, 804 HOLDIPP V. OTWAY 2 WMS. SAUND. 103. making the bill aforesaid hitherto was and yet is ready to perform all things on the part of him the said John Otway by the bill aforesaid to be performed, and protesting that there was not, from the time of making the said bill, any sum of money due to the said Cornelius upon any bill of charges by him expended in prose-being concluded by the plea he is to make, if the issue be found for him. Co. Litt. 124 b. Doc. Plac. 295. And it is of two sorts; first, when a man pleads any thing which he dares not directly affirm, or cannot plead for fear of making his plea double ; as if, iii conveying to...
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