Pritchard, Executrix of Daniel Pritchard, Deceased, v Bagshawe and Two Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 551
IN THE COURT OF COMMON PLEAS
S. C. 2 L. M. & P. 323; 20 L. J. C. P. 161; 15 Jur. 730.
[459] pritchard, Executrix of Daniel Pritchard, Deceased, v. bagshawe and Two others. 1851. [S. C. 2 L. M. & P. 323; 20 L, J. C. P. 161; 15 Jur. 730.] k.n abstract and affidavit used by a party upon a reference before the master, to prove title in himself, are admissible evidence against him in a subsequent action, upon the principle laid down in Slatterie v. Pooley, 6 M. & W. 664.-The nisi prius record, shewing that the writ of summons issued within six years of the accrual of the cause of action, is not conclusive evidence to prevent the operation of the statute of limitations. Whether it is even prima facie evidence for that purpose-quaere.- Where the writ of summons has been continued by alias and pluries, in order to prevent the operation of the statute, it is necessary for the plaintiff to shew that 552 PRITCHARD V. BAGSHAWE 11C.B.! the indorsement of a memorandum containing the day of the date and return (?) the first writ, required by the 10th section of the 2 W. 4, c. 39, was made upon t last writ before the service thereof upon the defendant.-An examined copy of t roll containing such indorsements is not evidence of the fact: neither is the w; itself.-As to the time when, and the party by whom, the indorsements on t intermediate writs must be made-quaere. This was an action of trover brought by the plaintiff, as executrix of Dan: Pritchard, deceased, to recover the value of a plant used by him as a contractor f public works; the declaration alleging a conversion in his life-time, to wit, on the 1 of January, 1843. The defendants pleaded,-first, not guilty,-secondly, not possessed,-third! leave and licence,-fourthly, that the cause of action in the declaration mentioned d not accrue at any time within six years next before the commencement of the suit. The plaintiff joined issue on the first and second pleas, replied de injuria to tl third, and, to the last, that the cause of action did accrue within six years. Isst thereon. The date of the writ at the commencement of the declaration was, the 16th June, 1846. The cause was tried before Talfourd, J., at the sittings in Middlesex after la Hilary Term. It appeared that, in 1838, an act of parliament (1 & 2 Viet. c. Ixxxvii was passed for reclaiming and embanking certain waste lands at Lough Swilly, i Ireland, and for vesting the lands so reclaimed in the undertakers, six individua named therein, of whom Drmsdale and Robertson were two. In 1840, Dani Pritchard and one Anderson were employed as contractors to form a portion of tt embank-[460]-ment. In July, 1841, possession was taken by one Abernethy, ti resident engineer of a company which had been formed for carrying the act into effec of the plant belonging to Pritchard; and, in 1842, Eobertson and Dimsdale entere into a contract with another contractor, named M'Cormick, to complete the work; using the plant in question. For the purpose of shewing that Eobertson and Dimsdale, in making the contrac with M'Cormick, were acting as the agents of the defendants, and so to render th latter responsible for the conversion of the plant, the plaintiff's counsel put in a bi and answer in a suit instituted by the defendants against one Sir John M'Neil, for specific performance of a contract relating to the wastes, in which suit there was decree referring it to. the master to take an account of the outlay of money in th drainage thereof. They then tendered an abstract which had been used by th defendants before the master, to shew their title to the embankments in question, am which contained, amongst other things, the particulars of a deed bearing date ii November, 1840, whereby Eobertson and Dimsdale, in whom the waste lands in ques tion had then become vested, had assigned the same to certain persons of whom th defendants were three, as trustees for the company : and also an affidavit used by tii now defendants in that suit, and. made by Dimsdale, in which he stated that he wa the manager of the company at the works. This evidence was objected to on the part of the defendants; but the learnec judge admitted it. The conversion relied on was, the taking possession of the plant by Abernethy, ir July, 1841. The first writ of summons having issued on the 16th of June, 1846, ir order to take the case out of the statute of limitations, it became necessary for th plaintiff to shew that that writ had been regularly continued. For this purpose! [461] an examined copy of the roll was produced, with the continuances duly enterec thereon, as follows :- " Pleas holden at Westminster, before the Eight Honourable Sir Nicolas Conynghair Tindal, Knight, and his brethren, &c., and before the Eight Honourable Sir Thomas Wilde, Knight, and his brethren, &c. "On the 10th day of November, A.D. 1846. "England, to wit. Our lady the Queen issued her writ of summons in these words, to wit, &c. [setting out the writ of summons, dated the 16th of June, 1846]: Afterwards, and within one calendar month next after the expiration of the said writ, including the day of such expiration, to wit, on the said 10th day of November, 1846, C. B.462. PRITCHARD V. BAGSHAWE 553 mes here the said Anne...
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