Lambert v Cameret
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1724 |
| Date | 01 January 1724 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 582
IN THE COURT OF KING'S BENCH
[446] at the sitting for nisi prius in guildhall, london, corah holt ch. J. 22 junii, 1697. lambert versus cameret. Evidence of death of plaintiff before action brought, tho' admitted by plea to be alive after issue join'd. An action was brought in B. R. in the name of Cameret against Lambert, and verdict and judgment for the plaintiff in that action ; now Lambert brings a writ of error coram vobis, and assigns error in fact, that C. died before the trial of that issue, viz. tab; die, &c. The defendant in error per A. B, attornat. suum saith, that he was alive, cfe adtunc in plena vita existit & hoc petit quod iriquiratur per patriam. And now the plaintiff in error gives in evidence, that the defendant being a seaman died several years ago before the action brought. Holt Ch. J. 'Tis bungling pleading, that the defendant comes by his attorney, it should be (come semble) that the attorney pro (magistro suo dicit). But here you are estopped to give in evidence the plaintiff's death before the principal action brought, for then by your plea you admitted him to be alive. Sir Earth. Shower pro quer'. We are indeed estopped to plead, that he died before the action brought; but sure we may give it in evidence to the jury, for if he were dead before the action, he must needs be dead before the trial. Holt Ch. J. contra. You are estopped in evidence; and he cited a case where tenant in tail had acknowledged a judgment or recognizance, and died ; upon a scire facias against his heir and tertenant, the sheriff return'd a scire feci, and there was judgment by default: and in ejectment it was ruled, that the issue in tail could not give in evidence, that the conusor was only tenant in tail, because he might have pleaded it to the scire facias. But here the defendant in error, saying, & adhuc in plena vita existit & hoc, &c. seems to have let the plaintiff loose from the estoppel, whereas if he had said absq; hoc, that he...
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