Prince and Others v Nicholson, Executor of Nicholson
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1814 |
| Date | 05 February 1814 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 718
Common Pleas Division
S. C. 1 Marsh. 70.
718 PRINCE V. NICHOLSON 5 TAUNT. 339. cause, by which they were prevented from making an application to the Court in that term. DALLAS J. The Defendants' proceeding is perfectly right. They discover an irregularity and give the Plaintiff notice that it is such, and that if the Plaintiff will stop here, to save expence, the Defendants will not move the Court ; the Plaintiff takes a proceeding behind the Defendants' backs, and then when they come to set it aside, contends that they have waived the irregularity. The Plaintiff has brought all this expence on himself by his own fault. Rule absolute. [333] PRINCE AND OTHERS V. NICHOLSON, Executor of Nicholson. Feb. 5, 1814. [S. C. 1 Marsh. 70.] A plea Nis darrein continuance may be pleaded at nisi prius, although there has been time to plead it in bank since the last continuance.If it be verified by an affidavit which refers to the plea, and the plea is in the cause, the affidavit is sufficient, though not specially entitled in the cause.It is not discretionary with the Judge at nisi prius to reject a plea pleaded puis darrein continuance. The Plaintiff declared for goods sold and delivered to the testator, money lent to him, money paid for him and upon an account stated with him. The Defendant first pleaded the general issue, and afterwards on Saturday next, after eight days of Saint Martin, in Michaelmas term, pleaded that the Plaintiffs ought not further to maintain their aforesaid action, because Sarah Newman, after the death of the testator, to wit, in that same term, by bill, without the writ of our lord the now king, had impleaded the Defendant as executor as aforesaid, in the court of our lord the king, before the king himself at Westminster, in the county of Middlesex, in a certain plea of debt, for the sum of 25001., for money borrowed by the testator from the said Sarah Newman, in his life-time, and due and owing at the time of his death, and that such proceedings were thereupon had in the said court in the said plea ; that the said Sarah Newman afterwards, avid after the last continuance in this cause, to wit, on the same day, by the consideration and judgment of the said court, recovered against the Defendant as executor as aforesaid, her said debt of 25001., and also 80s., which by the same Court were adjudged to the said Sarah Newman, for her damages, which she had sustained as well ou occasion of the detaining of that debt as for the costs and charges by her about her suit in that behalf expended, whereof the Defendant was convicted, as by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appeared, which sail judgment so had [334]...
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