Richard Foster Doctor of Physick Plaintiff; Anne Jackson Widow Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 201
King's Bench Division
60. richard foster Doctor of Physick Plaintiff; anne jackson Widow Defendant. Co. Ent. 618. Mo. 857. Mesme Case. Roll. 1. Abr. f. 903. 2 Brownl. 311. 8 Co. 86. b. 87. a. Trin. 10 Jac. Rot. 38. 14. sci. fac. Crompton. London. This was adjudged against Foster the plaintiff. Trin. 13 Jac. upon open and large agreement at the Bench, by Hobart, Nichols, Warberton, Winch to the contrary. Richard Foster brought a sci. fac. against Anne Jackson widow, and Miles Jackson, executors of the last will and testament of Thomas Jackson containing, that whereas K. B. ix.-7* 202 FOSTER V. JACKSON HOBABT, 53. the plaintiff in Mich, term 6 Jac. had recovered against the said Thomas in the Common Pleas as well a certain debt of 2300 pounds, as 16 pounds for damages, why he should not have execution against them of the same judgment: the defendants plead that the plaintiff ought not to have execution against them of the goods and chattels of the dead. For they say that the said plaintiff', after judgment in the life of the testator, scilicet the 13 day of Feb. in the said sixth year did prosecute quoddam bre. ipsius domiui Regis capias ad satisfaciendum against the said Thomas upon the said judgment, to the then Sheriffs of London directed retornable xv. Pasch. by force of which writ the same sheriffs, before the return thereof, that is to say, the 11 die Martii took the said Thomas, and had him in prison, and kept him for the debt, and damages aforesaid. And the said Thomas so being in execution after and before the return of the said writ, died in execution, and that the sheriff returned the writ so, and demanded judgement, and the plaintiff saith that the same Sheriffs of London did not take the said Thomas Jackson, and him in prison, and under custody in execution for the debt and damages aforesaid had and detained by vertue of the said writ of capias ad satisfac. prout, &c. whereupon issue was taken and the jury find that the sheriffs virtute brevis de cap. ad satisfac. infra specificat. non ceperunt, &c. aed dieunt quod ceperunt, &c. virtute cujusdam brevis capias ad satisfaciend. in recordo prajdicto minime specificat. in quadam exemplificatione inde confect. & jurator' osten' cujus tenor', &c. specificat. And so set down the writ of alias capias at large of the same teste, the same return and all things only it had not any averment, that the persons and judgement and all things are the same, and conclude si super tota materia, the Court shall think that the sheriff took him by force of the capias within mentioned, then they find the defendants; if otherwise, then for the plaintiff. The case depends upon two points. First, whether the verdict be found for the plaintiff or the defendant. The second, whether the death of Thomas Jackson in execution be an absolute discharge of the debt, against him, his heirs, executors and administrators, so as one new action or execution can be had against them, or any of them. Touching the first point there ariseth three questions. First, whether the former part of the verdict be peremptory, which finds that the sheriff took not Jackson by vertue of the writ of capias mentioned in the plea, or whether the rest that follows, that he took him by vertue of an alias capias not mentioned in the record, and sets forth that specially with conclusion, if upon the whole matter, &c. and leave it to the Court, do correct the first part. Next whether, the alias capias being understood of the same cause, persons, &c. will maintain the defendants plea. Lastly, whether this alias capias shall be understood of the same judgement mentioned in the defendants plea, because the verdict hath no averment expressed, nor by the word prced. &c. And to the first question upon the first point. [53] If the verdict had proceeded no further, than to the general negative, that the sheriffs did not take him by vertue of that writ, it had been clear against the defendant. But wheresoever a jury doth begin with a special matter, and after makes a general conclusion upon it, contrary to that, which the law and the Court do judge upon the special matter found by them, or on the other side, when they begin with a direct verdict, and yet after deduce a special matter, which is contrary to their direct verdict, or in law proves the truth contrary to their general verdict premised, and closed them up, with submitting the whole to the judgement of the Court, as in this case it is ; in both these cases the special matter makes the verdict and over-rules-the general. As for example, 20 KHz. Dyer 362. in debt against executors the defendant pleaded pleuiement administer, whereupon issue was taken, the jury find that the testator had made a lease for years of the house and implements of houshold rendring rent and died, and that the executors had received the rent and concluded issint assets, yet the Court judged upon a special matter it was no assets, because the rent ran with the reversion, and so belonged not to the executor. So Pasch. 22 Eliz. Dyer 370. one brought a writ de plegiis acquietandis, and the HOBARS.M. FOSTER V. JACKSON 203 jury found that the plaintiff was bound for the defendant, as his surety in an obligation with him joyntly and severally, and that being impleaded he prayed a plea, &c. and yet judgment was given against the plaintiff; for as this case ia, they were both principal, and neither pledge nor fidejuasor to the other : and this action lies not but where one ia named expresly as surety in the bond, which was not so in this bond. And Pasch. 2 and 3 Ph. and Mar. Dyer 115. b. debt upon an obligation for performance of covenants, whereof one was that he should do no waste, and issue taken whether he felled 10 oaks, it was found that he had not felled 20 oaks, but he had felled 10, and it was adjudged for the plaintiff, yet, if upon the first point it had rested there, it had been found for the defendant. 2 Cro. 453. Note, that 10 did not prove the issue of 20 literally, but it proved the breach clear within the issue. Qusere, if it had been oaks for ashes or the like, for either had been waste, and the very issue in contemplation of law is waste or no waatc, and the rest is a certainty of form, so in T&wnesend's case Plo. 111. As the second branch of the first point, whether the alias capias can be taken within the issue. First, lay this for a ground, that if the jury find any thing, that is meerly out of the issue, that such a verdict, for so much is utterly void and of no force, though it conclude in general, for or against the plaintiff or the defendant, whereof the reason is plain, which is, that the jurors are tryers of matter of fact put in issue between the parties, and their oath, which contains their commission is, that they shall truly try the issue between party and party : and so is the ven. fac. ad triand. exitum non ad triandum jus, as in a writ of right, so that whatsoever they do try besides the issue is per non juratos, as a cause judged by the Court, that hath no jurisdiction of the cause coram non judice, and utterly void, for a verdict must not be to the action, that might have been pleaded, but to the issue, which is pleaded, and in their charge. And if that other point had been pleaded it might have had another answer and evidence. Arid therefore the entry of the verdict in the record is, quid ad veritatem de infra content, jurat! dicunt super sacramentum suuin, &c. And so upon the matter, if that extravagant part of the verdict be false, it is no purjury, neither doth any attaint lie upon it, for there is no party grieved nor any thing to be restored, neither can it bo used as in evidence in any other tryal, because there is no redresa if it be false. And I hold it plain, you cannot justifie to call him perjured upon such a point being false. And so it is concerning a point of discourse by Judges out of the point of the judgement, it may be a judicious and studied opinion, and of some authority, but it is no part of the judgement, for no writ of error lies upon it and therefore it ought not to preoccupate or prejudicate [54] a judgement. And therefore 39 E. 3. 38. a writ of annuity was brought upon a prescription, the defendant traversed the prescription, whereupon issue was taken and found for the prescription. But further, the jury found that there was nothing of annuity behind, yet judgement...
To continue reading
Request your trial
-
Bennet v Filkins
...Kingwell was in prison by virtue of the warrant, that " 4y virtue," ought not to be traversed : but it was not moved. That this is good, see Hob. 52, Foster and Jackson's case, 9 H. 6, 14 and 20.(5) (3) And therefore shall be taken to be admitted. Plow. 48. 1 Salk. 91.(i) (4) Lord Hobart ar......
-
Matthias Prime Lucas, William Thompson, Phineas Davis, Joseph Bull, Thomas Lingham, and Charles Eicke, - Plaintiffs (in Error); Christopher Nockells, - Defendant (in Error)
...it is clear that B. 's writ did not authorise the arrest at the time it was made, and the taking of the bail bond. In Foster v. Jackson, Hob. 52, where the plea to a scire facias on a judgment against executors, was that the original defendant was taken by the sheriff by force of a capias a......
-
Lucas and Others v Nockelis
...it is clear that B.'s writ did not authorize the arrest at the time it was made, and the taking of the bail-bond. In Foster v. Jackson (Hob. 52), where the plea to a sci. fa. on a judgment against 10BING. 176. LUCAS V. NOCKELLS 871 executors was, that the original defendant was taken by the......
-
Matthias Prime Lucas, Esquire, William Thompson, Esquire, Phineas Davis, Joseph Bull, Thomas Lingham, and Charles Eicke, - Plaintiffs in Error; Christopher Nockells, - Defendant in Error
...there it is clear that B.'s writ did not authorize the arrest at the time it was made and the taking of the bail-bond. In Foster v. Jackson (Hob. 52), where the plea to a sci. fa. on a judgment against executors was, that the original defendant was taken by the sheriff by force of a ca. sa.......
-
Workplace Privacy, Autonomy, and Dignity in Colorado: Part Ii
...also is protected from unreasonable disclosure by the constitutional right to privacy. As the Tenth Circuit stated in Lankford v. City of Hobart,52 "there is no question that an medical records . . . are well within the gambit of materials entitled to privacy protection."53 Office Spaces an......