Pepper against Whalley
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1835 |
| Date | 06 November 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 721
IN THE COURT OF KING'S BENCH.
[90] pepper against whalley. Friday, Nov. 6th, 1835. Since the rule (Hil. 4 W. 4) that the entry of proceedings on the record for trial, or on the judgment roll, shall be taken to be, and shall be, the first entry of the proceedings upon record, it is not necessary to enter upon the Nisi Prius record a plea in abatement and judgment of respondeat ouster thereupon. The plaintiff declared in covenant, and the defendant pleaded in abatement, upon which plea the plaintiff had judgment of respondeat ouster. The defendant then pleaded non est facturu, on which the plaintiff joined issue. The plaintiff made up the issue on the Nisi Prius record without any entry of the plea in abatement or the judgment thereon, and delivered it to the defendant with notice of trial. The defendant, before the assizes for which the notice was given, returned the issue to the plaintiff, saying that he should not accept it in its then form. The plaintiff afterwards redelivered the issue in the same state; and the defendant attempted to return it again, but the plaintiff refused to accept it. On the trial before Taddy Serjt. at the last Chester Assizes, the cause was tried as undefended, and a verdict found for the plaintiff. John Jervis now moved (a) (on affidavit) for a rule to shew cause why the verdict should not be set aside, on the ground of rais-trial, or why judgment should not be arrested. The rule is, that the Nisi Prius record must contain an entry of the plea in abatement and judgment, when there have been such proceedings. In Dubartine v. Chancellor (b) a judgment (c) was set aside on this [91] very ground. It is true (a) Before Lord Denman C.J., Patteson, Williams, and Coleridge Js. (b) 5 Mod. 400. 12 Mod. 190. Garth. 447. 1 Ld. Raym. 329. (c) The verdict, according to the reports in Lord Raymond, in 12 Mod., and in Carthew. POOLEY V. GOODWIN 4AD.*B.2. that, in an Anonymous case (1 Salk. 4), which occurred afterwards, it was aaid, "The old course was to deliver in a copy of the whole record; viz. the declaration, plea in abatement, &c. and issue; but the Court made a rule for the future that a copy of the narr. and issue should only be paid for." But it appears that this rule did not prevail; for, in a later case, Coombe v. Pitt (3 Burr. 1423, 1682), an objection being made to the plea roll, that it omitted the mention of a plea in abatement, the Court, instead of...
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