Pitt v Knight
| 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. 105
COURT OF KING'S BENCH
[97] 11. pitt versus knight. S. C. 1 Lev. 222. 1 Sid. 329. 2 Keb. 205, 249, 278. In debt in the Court of Bristol the defendant pleads a judgment recovered in K. B.: the plaintiff replies nul tiel record, and prays judgment and bis debt, but no damages: the defendant rejoins that there is such a record, but that he could not have it there to produce: the Court below gives the defendant a day to produce it, and on failure, judgment was. given for the plaintiff to recover debt and damages. Held that this is no error for the not praying of damages is but mere form :(1) and the judgment was affirmed, though no issue joined in the rejoinder on the nul tiel record, nor any demurrer for wanfe of the usual averment of "this he is ready to verify by the record."(2) If a record of K. B. be pleaded in an Inferior Court, the record may be transmitted there, by certiorari out of Chancery, and mittimus. Error upon a judgment in debt in the Court of Bristol, where the said Knight and Knight were plaintiffs against Pitt defendant, and declared in debt upon bond for (1) In 2 Lev. 19, Barnes v. Gladman, ruled good upon special demurrer, and declared to be an unnecessary form of pleading; for by praying judgment every thing is included, and when the Court gives judgment, it consequently gives judgment for the debt and damages. Per Lord Keeper Bridgman. 1 Str. 523, Curwen v. Fletcher* Willes'a Eep. 13, Shelly v. Wright, (a) (2) See post, p. 99, note (2). (a) [See 3 A. & E. 763, Vivian v. JenTdn. 5 N. & M. 36, S. C. By rule H. T. 4 W. 4, No. 9, it is no longer necessary, in any replication or subsequent pleading intended to be pleaded in maintenance of the whole action, to use any prayer of judgment. And this rule applies to a pleading which answers only part of the previous pleading. Semble, Vivian v. Jenkin, supra. 1 Q. B. 496, Batton v. Dam.] K. B. xiv.-4* 106 PITT V. KNIGHT 1 WMB. SAUND. 98. 6001. Pitt the defendant there pleaded, that the plaintiffs had theretofore recovered in the King's Bench upon the same bond. The plaintiffs replied, nul tiel record; and this, &c.: wherefore t)tey pray judgment, and their debt aforesaid to be adjudged to them. The defendant there rejoined that there is such a record of the recovery of the debt aforesaid as he has above in pleading alleged, as by the record thereof remaining in the King's Bench appears: but because the record of the recovery aforesaid remaining in the King'a Bench cannot now be judicially had or brought into Court here, the said defendant prays judgment if the Court now here will proceed any further of and upon the premises, &c.: and thereupon the Court of Bristol gave a day to the defendant there to bring in the record; and, upon failure of the record, judgment was given there that the plaintiffs should recover their debt and damages, &c., although they had prayed no damages in their replication. And the errors which were insisted upon at the Bar were two: 1. That the plaintiffs in the Inferior Court had prayed no damages in their replication. 2. That the Court had given judgment upon failure of the record, [98] where they ought to have given over their proceedings, or at least the plaintiffs ought to have demurred upon the rejoinder, and judgment should have been given upon the demurrer. And as to the first error, it was argued that the replication was bad for want of the praying of damages, and therefore, the plaintiffs ought not to have judgment. And the case of Feared and Chambers t was cited, where the plaintiff neither averred his replication, nor prayed his debt and damages, and for both these faults the judgment was reversed. But this point was over-ruled, because the not praying of damages was only matter of form; for the plaintiffs have in this case averred their replication, and prayed their debt; and the omission of the word "damages" is aided by the Statute of General Demurrer.! As to the second point, it was argued, that the Court below ought to have stayed their proceedings upon the foreign plea of the record of the King's Bench, and ought not to have proceeded or given any judgment, because it could not be tried. And these cases were cited: the statute of Gloucester, 2 Inst. 325, a foreign plea in real actions, but not in personal actions, is aided by that statute : Bro. Cause de Eemover Plea, 41. 3 H. 4, 11 b. & 18, debt upon bond in London, the defendant pleaded by duress at Windsor; and upon demurrer, the judgment was quod sequatur ad communem kgem, defendens eat inde sine die: 32 H. 6, 26, by issue joined on a foreign plea, the Court is ousted of jurisdiction. And as to this, it was argued on the other side, that the record of the King's Bench might be removed by certiorari out of Chancery, and transferred by mittimus to the Court of Bristol; and so the issue of mil tiel record might be tried there, and therefore the plea not a foreign one. (1) And if it should be otherwise construed, the consequence would be that all actions in an Inferior Court would be ousted by a fiction : for in truth there never was any record in this Court as the defendant below has pleaded. But to this it was answered by the plaintiff in error, that no record here in the Superior Court shall be removed out of it and sent to an Inferior Court. In Cro. Car. 297,* Luiterel's case, it was doubted t whether a certiorari to certify a record out t Cro. Eliz. 256. j 27 Eliz. c. 5. (1) A foreign plea is where the action is carried out of the country, or place, &c. where it is laid. Garth. 402, Chumley v. Broom. See the form of it in Lill. Ent. 475. It must be pleaded before a general imparlance, and an oath must be made of the truth of it. Litt. Rep. 236, 1 Sid. 234, Collins v. Sutton. Sty. 225, Dudeny v. Collyer. 1 Vent. 180, St. AuUn v. Cox. 2 Salk. 515, Pierce v. Blake. If an Inferior Court should refuse to receive such plea, the defendant upon affidavit made, that the fact did arise out of the jurisdiction, (unless it appears on the face of the declaration,) and that he tendered a foreign plea in the manner above mentioned, may have a prohibition from one of the Common Law Courts at Westminster, or in vacation from the Court of Chancery. 1 P. Will. 476, Anon. * Lutterel v. Lea. t But divers precedents were shewn that such records had been sent by mittimus out of Chancery into C. B. I WMS. SAUND. 99. MICH. 19 CAR. II. EEGIS 107 of this Court to the Common Pleas upon mil liel record, pleaded there, were allowable ; but if it had been to an Inferior Court, there would have been no doubt that it could not be; as appears from Cro. Car. 34, this Court will not execute the judgment of an Inferior Court removed by certio -ari.(2) [99] And as to the objection of ousting the jurisdiction of an Inferior Court by a fiction, it was answered, that the Court ought to have compelled the defendant to swear to the truth of bis plea, or otherwise have entered a nihil dicit against him : and if he swears it, then there is no greater mischief than in otber similar cases. But admitting that the record might well have been removed to Bristol, yet it was argued that, in the present case, the judgment given upon failure of the record was erroneous, and without any issue joined. For the defendant in his rejoinder says, that there was such a record, but he could not have it there, which is as much as to say, that he would not have it there; and therefore the plaintiffs ought to have demurred, because there was no issue joined by the defendant ; for if the defendant would have joined issue, he ought to have said in his rejoinder that there was such a record ; and this he is ready to verify by the record, as all the precedents are; as in Eastall's Entries, Appeals en Mort, 5;(i) Conspiracy in Bar, 2, 3; * Debt in Gaoler, 2 ; t Debt on Eecovery, 5 ; j and all the books; and for default of this averment the rejoinder was bad, and the plaintiffs ought to have demurred, and the Court should have given judgment upon the demurrer, and not upon failure of the record. And now in this term the Court was of opinion, that the record in this Court might have been certified to Bristol by certiorari and 'mittimus. But, upon the other point, Kelynge Chief Justice declared his opinion that there was not any issue joined, which the Court did not contradict. But when it was prayed that judgment should be reversed, the Court affirmed the judgment against their own opinions. Quod note. (2) Saunders of counsel with the plaintiff in error, and Jones with the defendant. (2) The case in Cro. Car. 34 does not seem to warrant the conclusion which is here drawn from it. The point there determined was, that a judgment in the Great Sessions in Wales cannot be removed by certiorari and mittimus into the King's Bench or Common Pleas, in order to take out a scire facias thereon, to affect property in the hands of a person resident here in London ; and the reason assigned was, that it would be a great inconvenience to the subjects to make lands or persons liable to judgments in other manner than they were at the time the judgment was given. But this is now altered by the statute 33 G. 3, c. 68, s. 1, by which it is enacted that, where final judgment shall.be obtained in the Courts of Great Sessions in Wales, or the Counties Palatine of Chester, Lancaster, and Durham, and the persons or effects cannot be found within the jurisdiction of such Courts, any Court of Eecord at Westminster may issue execution, (a) (1) This seems misprinted for "Appeals in Robbery, 5." See East, Ent. 54 b. * East. 123 b. t Ibid. 169 b. \ Ibid, 194 b. (2) See 2 Lutw. 1269, 1273, Sparks v. Cole. 945, Rowel v. Dyon. Lib. Plac. 286. Though the Court seemed first to be of opinion, that no issue was joined, yet by affirm ing the judgment they thought that the defect (if any) was mere form, which could not be taken advantage of without a special demurrer. And accordingly in 1 Salk. 1, Duncombe...
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