The same Jevens against Harridge and Wife, Administratrix of Levemere
| 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. 8
COURT OF KING'S BENCH
[8] 2. the same jevens against harridge and wife, administratrix of levemkre. Trin. 18 Car. II. Roll 149. S. C. 2 Keb. 102, 116, 118. 1 Sid. 308. Oyer cannot be granted of any deed, &o. which is not brought into Court, but if it be, and the deed, &c. is set out, it is but form, and must be specially demurred to. Debt on bond made by the intestate, with a profert into Court.-The defendants crave oyer of the bond, and it is read to them; they then pray oyer of the condition of the bond, and it is read to them in hcec verba, " the condition &c." and it was for performance of covenants in an indenture made between the plaintiff and the intestate ; and after oyer of the condition, the entry upon the roll was, that the defendants prayed oyer of the indenture mentioned in the condition, which was not brought into Court, and it is read to them in these words, to wit, "this indenture, &c." and set out the whole indenture in English, by which it appeared that the plaintiff had leased a messuage to the intestate for a term of years, rendering rent, and the intestate covenanted to pay it, as in the preceding case; and thereupon the defendants pleaded the same plea as before, but in this plea they averred that the messuage was a dwelling-house: upon which plea the plaintiff demurred generally. And the exception was, that the defendants had prayed oyer of an indenture which was not brought into Court by the plaintiff, nor appeared to be in Court at all. For the plaintiff has brought only the bond into [9] Court, but no indenture; and the defendants ought to have brought the indenture into Court to defend themselves : but here no indenture appears to be in Court, and therefore praying oyer thereof is frivolous and idle, and the Court ought not to regard it, but should construe it as the idle entry of the clerk. And when a deed is not in Court no oyer can be granted, as in 11 H. 4, 12, 13, & 44. Bro. Oyer de Records, &c. 8. The defendant in the Common Bench.'could not have oyer of the record of a judgment in the Court of Kingston-upon-Hull, because the record was not in the Court of Common Bench, but remained in the Inferior Court.(l) And it was K. B. in the case of Neale v. De Garay, 7 Term Rep. 243, 247, where it was held, upon the authority of Ilderton v. Ilderton, that it is not necessary, in a plea in abatement, that another person ought to have been sued with the defendant, to lay a venue; and if it be pleaded, that such other person is still alive, to wit, in Spain, it is mere surplusage, and will be considered as pleaded without any venue.(d) (1) The reason whereof, says Lord Broke, seems to be, because the record remains in the Inferior Court, and not in the custody or power of the party; and herewith agree Wymark's case, 5 Rep. 75 a. and Co. Litt. 231 b.; and therefore the party may plead the record without profert. Willes, 559, Stone v. Kawlinson. Ibid. 689, Titley v. Foxall.(a) So where a person has no right to the possession of the deed or counter- (d) [And now by Reg. Gen. Hil. T. 4 W. 4, Pleading, No. 8, it is provided, that " the name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration or in any subsequent pleading; provided, that in cases where local description is now required, such local description shall be given." However, the insertion of a venue, contrary to this rule, is not a subject of demurrer, nor a ground for setting aside the declaration. The only remedy is to apply to a Judge at chambers to strike out the venue. 1 Cr. Mees. & R. 369, Farmer v. Champneys. 4 Tyrw. 859, S. C. 5 Tyrw. 214, Townsend v. Gurney. 1 Cr. Mees. & R. 590, S. C.] (a) In Stone v. Bawlinson, it was held, that where the administrator of the payee of a promissory note indorsed it to the plaintiff, the latter might sue on the note 1 WMS. SAUND.. MICH. 18 CAR. II. REGIS 9 further objected, that by this means the plaintiff would be tricked ; for suppose the defendants had misrecited the indenture, or had omitted any of the covenants, or perhaps had set out another indenture between the parties, to which the condition was part, as the owner of a rent-charge, he may plead it without profert. 1 Vez. 394, fVhiijidd v. Fausset. So where a person pleads a deed operating under the Statute of Uses, there is no necessity of making a profert. Dy. 277 a. Estoff's case, and the notes in the margin. Cro. Jac. 217, Earl of Huntingdon v. Mildmay. Cro. Car. 441, Stockman v. Hampton. Sir W. Jones, 377. S. C. Garth. 315, Reynel v. Long. 1 Vez. 394. 3 Term Rep. 156, Read v. Brookman. Co. Litt. 35 b. note (6). 2 H. Black. 262, Bolton v. Bp. of Carlisle.(b) So in a conveyance by feoffment; for the estate passes by the livery; and the statute of Frauds, 29 Car. 2, c. 3, which requires that livery should be accompanied by some instrument in writing, has not altered the form of pleading, 3 Term Rep. ibid. Co. Lit. 35 b. n. (6). And in some cases, where by law a profert is...
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