Smith et Al v Martin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 1206
COURT OF KING'S BENCH
1206 SMITH AND AL! V. MARTIN 2 WMB. SAUND. 394. [394] de terming pasch.e, anno regni regis car. II. 24. 64. smith & al' versus martin. Hil. 23 & 24 Car. II. Regis, Rot. 545. Writ of error from the County Palatine of Durham to the K. B. Our lord the King hath sent to his justices itinerant, and other justices in his County Palatine of Durham and Sadberg, his writ close in these words, to wit: Charles the Second, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c., to our justices itinerant, and our other justices in our County Palatine of Durham and Sadberg, and to every of them, greeting: because in the record and proceedings, and also in the giving of judgment, in a plaint which was in our Court holden at Durham before you or some of you, by our writ, between Samuel Martin, clerk, and Robert Smith gent, and Anne his wife, Nicholas Palmer, mason, John Baraclugh, labourer, and Thomas Palmer, mason, Richard Browne, labourer, Robert Younge, labourer, and George Jurdison, labourer, of a certain trespass on the case done to the said Samuel, by the said Robert, Anne, Nicholas, John, Thomas, Richard, Robert, and George, as it is said, manifest error hath intervened, to the great damage of the said Robert, Anne, Nicholas, John, Thomas, Richard, Robert, and George, as by their complaint we are informed : we being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, that if [395] judgment be thereupon given, then you send to us distinctly and openly, under your seals, or the seal of one of you, the record and proceedings aforesaid, with all things concerning the same, and this writ, so that we may have them in 15 days of St. Martin wheresoever we shall then be in England ; that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon for correcting that error, what of right, and according to the law and custom of our realm of England, ought to be done. Witness ourself at Westminster, the 8th day of August in the 23d year of our reign. norbury. The answer of our said lord the King's justices itinerant in the County Palatine of Durham and Sadberg, &c., to this writ, &c. The record and proceedings in the plaint whereof mention is within made, with all things concerning the same, we send before our lord the King wheresoever, &c. on the day within contained as within we are commanded. milo stapylton, william belasys. The record and proceedings, of which mention is made in the writ annexed to this record, with all things concerning the same, follow in these words : Durham to wit. Pleas at Durham in the county of Durham before William Belasys, Esq. and Milo Stapylton, Esq. and their companions, justices itinerant of our lord the King in the county of Durham and Sadberg of the Session or Court of Pleas holden at Durham, on the 19th day of June in the 23d year of the reign of our Lord Charles the Second, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. Durham, to wit, Samuel Martin, clerk, offered himself against Robert Smith, late of the City of Durham in the county aforesaid gent, and Anne his wife, Nicholas Palmer, late of Elvett, in the county aforesaid, mason ; John Barraclugh, late of Elvett, in the said county, labourer ; Thomas Palmer, late of Elvett, in the county aforesaid, mason ; Richard Browne, late of Elvett, in the said county, labourer; Robert Younge, late of Elvett, in the county aforesaid, labourer ; George Jurdison, late of Elvett, in the county aforesaid, labourer; John Taylor, late of Elvett, in the county aforesaid, labourer; and John Bellamy, late of Elvett, in the county aforesaid, mason, in a plea wherefore whereas the said Samuel, on the 29th day of November in the 22d year of the reign of our Lord Charles the Second, now King of England, &c., was seised of and in a dwelling-house with the appurtenances in the City of Durham in the county aforesaid, whereof a house called the Garden-House, 2 WMS. SAUND. 39. PASCH. 23 CAR. II. HEGIS 1207 otherwise, the House on the Wall, and a garden then were parcel, in his demesne as of fee; and being so seised thereof the said Robert Smith, Anne, Nicholas, John Barraclugh, Thomas, Richard, Robert Younge, George, John Taylor, and John Bellamy, well knowing the premises, but maliciously contriving and intending to hinder and deprive him the said Samuel from the profit and advantage of his house called the Garden-House, otherwise, the House on the Wall, and garden, and unjustly to aggrieve the said Samuel, on the said 29th day of November [396] in the 22d year aforesaid, did dig stones in a certain piece of land called the Bank, otherwise, the Mote Side, in the said City of Durham, so near the said house called the Garden-House, otherwise, the House on the Wall, and garden, that the said house and 300 perches of a stone-wall inclosing the said garden afterwards, to wit, on the first day of December in the 22d year aforesaid, entirely tumbled down and fell down upon the ground in the said piece of ground so dug, to the damage of the said Samuel of 1001. And the -said Robert Smith, and Anne, Nicholas, John Barraclugh, Thomas, Richard, Robert Younge, George, John Taylor, and John Bellamy did not come, therefore the Sheriff of Durham aforesaid is commanded that he attach them, &c. And the sheriff now returns that they have nothing, &c., therefore let them be taken, &c.; whereupon the said sheriff is commanded that he take them if, &c. so that they be here before the justices itinerant of our said lord the King on the 30th day of June instant, &c. At which day here, before William Belasys, Esq. Milo Stapylton, Eaq. and their companions, justices itinerant of our said lord the King in the county of Durham and Sadberg, at the Session or Court of Pleas holden here on the same 30th day of June in the 23d year aforesaid, came as well the said Samuel Martin as the said Robert Smith and Anne, Nicholas, John Barraclugh, Thomas, Richard, Robert Younge, and George in their proper persons, and the said John Taylor and John Bellamy did not come; and thereupon the said Samuel found pledges to prosecute the said plaint, to wit, John Doe and Richard Roe, and then likewise the said Samuel put in his place Cuthbert Hawdon against the said Robert Smith and Anne, Nicholas, John Barraclugh, Thomas, Richard, Robert Younge, and George, who appeared in the plea aforesaid, &c. And the said Robert Smith, and Anne, Nicholas, John Barraclugh, Thomas, Richard, Robert Younge, and George puC in their place Francis Crosby against the said Samuel, in the plea aforesaid, &c. Durham, to wit. Robert Smith, late of the City of Durham in the said county, gent, and Anne his wife, Nicholas Palmer, late of Elvett, in the said county, mason ; John Barraclugh, late of Elvett, in the said county, labourer; Thomas Palmer, late of Elvett, in the said county, mason ; Richard Browne, late of Elvett...
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