Lyttleton and Another against Cross and Moody, Executors of Hugh Lush, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1824 |
| Date | 01 January 1824 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 751
IN THE COURT OF KING'S BENCH.
S. C. 5 D. & R. 175; 3 L. J. K. B. O. S. 2.
lyttleton and another against cross and moody, Executors of Hugh Lush, Deceased. 1824. By fiction of law, all judgments are supposed to be recovered in term, and to relate to the first day of the term; but in practice judgments are frequently signed in vacation, and where the purposes of justice require that the true time when the judgment was obtained should be made appear, a party may shew it by averment in pleading; therefore, in an action against an executor for breaches of covenants in an indenture made by his testator, the defendant having pleaded in chief plene administravit and a retainer for a simple contract debt, upon which issues were taken and joined, and then puis darrein continuance, a judgment recovered upon a bond of the testator's after the last continuance, (being the last day of Trinity term) to wit, on the second day of August, as of Trinity term preceding; to which the plaintiff replied, that the defendants had notice of the bond before the commencement of the action : Held, upon demurrer 752 LYTTLETON 0. CROSS 3B.&C.31S. to the replication, that the plea was well pleaded, and was an answer to the action. [S. C. 5 D. & E. 175; 3 L. J. K. B. O. S. 2.] Declaration of Hilary term 3 G. 4, upon an indenture made between Sir K. C. Hoare, Bart., and the plaintiffs of one part, and Hugh Lush, deceased, of the other part, by which, in pursuance of an agreement for an exchange of lands, Lush granted, bargained, sold, and exchanged to the plaintiffs, their heirs and assigns, a cottage or dwelling-house, lands, hereditaments, and premises, habendum to the plaintiffs, their heirs and assigns, for ever. Covenant by Lush for good title and for quiet enjoyment. Breach, that Lush had not good title, and that plaintiffs were evicted by two persons having lawful title. Plea, that the defend-[318]-ants had fully administered all and singular the goods and chattels of the testator. Secondly, a retainer by Cross, one of the executors, with the assent of the other, on account of a promissory note given by the testator to Cross the executor for 1001.; and that, at the time of his death, the same was due; and that the defendants had fully administered all the goods and chattels of the deceased, except goods and chattels of the value of 561. which were not sufficient to satisfy the debt due to Cross the executor. Replication, of Trinity term, that the defendants bad assets of the value of the damages sustained by the plaintiffs by reason of the breaches of covenant. Rejoinder, which was of Hilary term 4 G. 4, joining issue upon the replication. At the assizes at Bridgwater, on the 2d August 1823, the defendants pleaded puis darrein continuance, that one Thomas Cross, after the death of Lush, to wit, in Trinity term in the 4th year of G. 4, by bill without the King's writ, had impleaded the defendants, as executors in a certain plea of debt, for the sum of 8001. upon a writing obligatory entered into by Lush in his lifetime to Thomas Cross; and such proceedings were thereupon had in the said plea of debt, that the said Thomas Cross afterwards, and after the last continuance of this said cause, that is to say, after the 18th day of June in the year last aforesaid, from which day, until the 6th day of November in Michaelmas term next, unless the justices assigned to hold the assizes for the county of Somerset should first come on the 2d day of August in the year last aforesaid, this said cause continued, to wit, on the said 2d day of August as of last Trinity term, in the 4th year of the reign of G. 4, as aforesaid, recovered a certain judgment of the Court of King's Bench against the said defend-[319]-ants as executors as aforesaid, whereby it was considered that the said Thomas Cross should recover against the said defendants the sum of 8001. and 84s. for his damages and costs. After averring that the judgment was still in force, the defendants pleaded that they had fully administered all the goods and chattels, except goods and chattels of the value of 561. which were not sufficient to satisfy the debt and damages recovered by the judgment. Replication, that the defendants before the exhibiting of the bill of the plaintiffs, to wit, on the 1st of January 1823, at, &c., had notice of the said writing obligatory and debt in the same plea mentioned. Demurrer and joinder. Campbell in support of the demurrer. Prince v. Nicholson (1 Marsh. 280. ' S. C. 5 Taunt. 333), is an authority to shew that an executor may plead puis darrein continuance, a judgment recovered in a suit subsequently commenced, and that the plea is not invalidated by the executor's having suffered judgment to pass against him voluntarily. That case is not distinguishable from the present. (He was then stopped by the Court.) E. Lawes, contra. This case is materially distinguishable from that of Prince v. Nicholson. The judgment in this case having been signed in vacation, must have been obtained under a warrant of attorney given by the defendants, they therefore became actors. Besides, here it is admitted upon the pleadings that the defendants, before the commencement of this action, had notice...
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