Moses Moravia against Robert Sloper Jun. William Salmon, James Williams, and James Parker
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1737 |
| Date | 28 November 1737 |
| Court | Court of Common Pleas |
English Reports Citation: 125 E.R. 1039
Common Pleas Division
Referred to, Mayor of London, v. Cox, 1867, L. R. 2 H. L. 263; Hill v. Metropolitan Asylum District, 1879-81, 4 Q. B. D. 441; 6 App. Cas. 193.
M. 10 Geo.2 Rol. 1737.
MORAVIA t', SLOPER 1039 pursued (c) in a reasonable time by the executor or administrator ; and therefore those were adjudged (as it was said) upon the equity of that clause in the statute 21 Jac. 1, c. 16, which gives a year after judgments or outlawries reversed ; and it is not pretended in any of them that the executor or administrator shall have a new six years. The case of Booth v. Johnson was cited out of Farresley (7,Mod. 143) and Lilly 5 (e): but Lilly is a book of no great authority ; and as it is reported in the other, it is said that the plaintiff had judgment in this Court, and that it was afterwards affirmed in the Court of King's Bench because the defendant had pleaded the Statute of Limitations ill. And if so, the plaintiff's replication could never come in question. We are therefore of opinion that the plaintiff's replication is not good for this reason (f). But there is another reason also not mentioned by the counsel, because all the promises in the declaration are laid to be made to the testator ; and where they are so, it is held in the case of Green v. Cooke, M. 3 Ann. B. R., and reported by the name of Dean v. Crane, Salk. 28, and 6 Mod. 309, that an executor cannot give evidence of a promise to himself (g) within six years ; and if he (30] cannot, setting forth a promise to himself in his replication as the executors have done in the present case is a departure in pleading ; and for that reason also the replication is not good. We are therefore of opinion that judgment must be for the defendant." MOSES MORAVIA against ROBERT SLOPER JUN. WILLIAM SALMON, JAMES WILLIAMS, AND JAMES PARKER (a). M 11. G. 2. Monday, Nov. 28th, 1737. [Referred to, Mayor of London v. Cox, 1867, L. R. 2 H. L. 263 ; Hill v. Metropolitan Asylum District, 1879-81, 4 Q. B. D. 441 ; 6 App. Cas. 193.] [M. 10 Geo, 2. Rol. 1737.] When the party (the plaintiff below) pleads a justification under process of an Inferior Court, he must shew that the cause of action arose within the jurisdiction of that Court : but the officers of the Court need not.Whether it be not necessary to state in such a plea the nature and extent of the jurisdiction of the Court below' Qu.A capias cannot be issued out of an Inferior Court without a precedent summons to warrant it but if it be pleaded that at one Court the plaintiff below levied his plaint and such proceedings were thereupon had that at a subsequent Court a capias issued, it, will be intended that a summons issued first ; but such intendment will not he made where the capias issued at the same Court.A principal officer, to whom returnable process is directed, must shew that it is returned, but a subordinate officer need not. The pinion of the Court was delivered as follows, by WIL ES, LORD CHIEF JUSTICE. "The action is for an assault, battery, woending, and false imprisonment. The defendants join in their plea, and plead the general issue not-guilty, as to all the trespass, except the assaulting, imprisoning, and keeping and detaining the (c) See Karver v. James, post, Trin. 1741, and the cases there cited. (e) Lilly, 471. S. C. in 2 Ld. Raym. 838, by the name of Gould v. Johnson. (f) This case is distinguishable from that of Curry v. Stevenson, earth. 335, Salk. 421, and Skin, 555, where it was said that the administrator shall have six years from the time of granting the administration, because there the Statute of Limitations had not begun to run ie the intestate's lifetime, the money not having been received by the defendant until after the death of the intestate; (though this circumstance is not noticed in the abridgment of the case in 1 Corn, Dig. 168, or in the former edition of Bac-. Abr. vol. 4, 479 ;) and also from Stanford's case, Cro. Jac. 61, and 5 Rep. 124 b. for a similar reason.The first point decided in the principal case (Hickman v. Walker) seems also to have been determined the same way in Smith Executor of Cod v. Hill Executor of Clark, 1 Wile. 134. (g) See The Executors of the Duke of Marlborough, v. Widmore, 2 Str. 890. (a) This case is shortly bet inaccurately reported in Com. Rep. 574. 1040 MORAVIA V. SLOPER W1LLES, 31. said Moses in prison for the space of twenty-eight days. And as to that they justify in this manner; They say that the borough of Devizes is an ancient borough ; and that before the time &c. to wit on Friday the 9th of May 1735 at a Court of Record of our lord the now King in and for the said borough in the Guildhall of the same borough and within the jurisdiction of the said Court before the mayor recorder and three of the capital burgesses (naming them) being counsellors of the said borough according to the liberties and privileges of the same then held by virtue of letters patent of [31] Car. 1, late King of England, 5th of June in the 15th year of his reign, granted to the mayor and burgesses and their successors, one James Batten in his proper person came and then and there levied his plaint against the said Moses Moravia of a plea of trespass on the case, to the damage of the said James Batten 401,, and found pledges to prosecute his said plaint, and prayed that due process of law might be awarded against the said Moses, which was then and there granted him ; thereupon such further proceedings were bad in the said Court according to the tenor of the said letters patent that afterwards to wit at that same Court of {Record &c. held the same Friday the said 9th of May 1735 before the said mayor &c. by virtue of the said letters patent there issued out of the said Court a certain precept of our said lord the now King directed to the then bailiffs and serjeants at mace of the said borough and every of them being then and always afterwards until and after the return of the said precept ministers of the said Court, by which said precept the King commanded them and every of them that they should take the said Moses Moravia and him safely keep so that they might have his body before the mayor &c. at their next Court of the same borough to he holden in the Guildhall there on Friday the 6th day of June then next to answer to the said James Batten of a plea of trespass on the case, to his damage 401. &c. ; which said precept was duly indorsed on affidavit duly made for the sum of 401. according to the form of the statute &c. ; and the said precept so indorsed was afterwards arid before...
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