Simpson against Merrille
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 439
IN THE COURTS OF KING'S BENCH
case 38. simpson against merrille. Michaelmas Term, Jac. 2, Roll 370. In trespass justified by process out of an Inferior Court, it is sufficient to say that a plaint was levied and thereupon taliter processum fuit the plaintiff should pay costs for his default, &c.-S. C. 2 Lutw. 1369. S. C. N. Lut. 439. S. C. Comb. 124. S. C. Garth. 53. Trespass for taking goods, &c. The defendant justifies by a judgment in ati Hundred Court, and process thereupon. The plaintiff demurs. Mr. Northey for the plaintiff, took clivers exceptions to the plea, first, that they ought to shew for what purpose the Court was holden, and it is not enough to say a Court holden. Secondly, they say, the plaint was levied according to the custom of the hundred, and do not say secundum consuetudinem Cur' prced'. Thirdly, they say there was a plaint levied in trespass on the case, et taliter fuit process', that it was considered, the plaintiff should pay costs for his default, unde cmivictw est; this is ill, for in case of an Inferior Court, they ought not to plead it so, for that each part of process is traversable. Fourthly, they say not, that the process was awarded [48] per Cur. The suitors are set out to be the Judges, and the process is under the seal of the steward, et non constat, that he had any thing to do with the Court (a). Fifthly, then as to the process they cannot have a levari facias, their process is distress infinite till satisfaction, they have no such writ: and so is 22 Assiz. 72. Noy 17. Thompson. The law will take notice to what purpose an Hundred Court is kept. As to the taliter process' I know no reason for a difference between the mode of pleading in an Inferior Court and here; anciently all was set forth, now it need not (b), if it is said according to custom, you'll intend it good : and as to the process it is said to be according to custom, and that shall be intended good unless the contrary appear. Holt Chief Justice. At common law no levari can be; but the quaere is whether it may be by custom, and now the practice generally is so (c). As to the other point, in a case in my Lord Bale's time, it was held to be good, though only said taliter fuit process', but here it doth not appear whether the non-suit was before or after appearance; if before, no costs; but yet if...
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