Plumer, Spr. v William Marchant, Administrator of peter Marchant
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1763 |
| Date | 03 May 1763 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 884
IN THE COURT OF KING'S BENCH
Followed, Sander v. Heathfield, 1874, L. R. 19 Eq. 26.
plumer, Spr. versus william marchant, Administrator of Peter Marchant. Tuesday, 3d May, 1763. Administrator defendant may give evidence of retainer or plead it. [Followed, Sander v. Heathjield, 1874, L. E. 19 Eq. 26.] This was a case reserved from the Sussex Assizes, holden before Mr. Serjeant Wynne. An action of debt was brought, in Michaelmas term 1762, upon a bond of the defendant William Marchant's intestate, in the penal sum of 2001. The defendant, in Hilary term, 1763, pleaded plene administravit. is also another point mentioned towards the bottom of the same page; which, if determined one way, would have been a bar to the plaintiff: and the Court would not enter into that question, "because it was never intended by the parties to be meddled with by the present action most plainly : " whereas, the Court ought to consider every point material, though omitted to be insisted on, and yet with respect to the modus for hay, they determined against the admission of the parties. (h) Even if there had been no such clause, yet by the rules of law and justice*, the land allotted ought to be subject to the same charges, as the land in lieu of which it was allotted, Pickering's Finch. 67, Reg. 93 ; therefore this clause aught to have been extended to all charges and incumbrances, and consequently to the repairs; and dower is particularly mentioned : so that it was absurd to say, the general words had reference to that; and if the lands allotted were subject to repairs, they could not be subject to tithes, as that would make them doubly charged with respect to tithes : as to all benefits and exemptions, as well as to all burdens, the lands allotted ought to be considered as the same as those " in lieu of which they were allotted ;" and so is the rule in the statute. The clause in which is thus, " be it further enacted by the authority aforesaid, that the lands intended to be allotted and inclosed as aforesaid, shall after such allotments thereof respectively be held and be enjoyed, by such person and persons respectively, and in such course, order and manner ; and shall be subject to such jointures, dowers, estates, portions, charges, and incumbrances respectively, as the lands and hereditaments, in respect whereof such allotments shall be made, ought to have been held and enjoyed, and should have been subject to in case this Act had not been made." * V. ante, p. 1265, 23d Jan. 1762. S BUBS. 1381. PLUMER V. MARCHANT 885 The...
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