Turner v Davies

JurisdictionEngland & Wales
Judgment Date01 January 1845
Date01 January 1845
CourtCourt of the King's Bench

English Reports Citation: 85 E.R. 871

COURT OF KING'S BENCH

Turner
and
Davies

[137] 25. turner versus davies. Pasch. 22 Car. II. Eegis, Eot. 576. England, to wit,-Our lord the King has sent, to his justices assigned to hold pleas before the King himself, his writ close in these words, to wit i Charles the 2d, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. to our justieea assigned to hold pleas before us greeting: by the great complaint of Edward Turner it is grievously complained of, and shewn to us, that whereas one Edmund Spicer heretofore, to wit, on the 1st day of July in the 20th year of our reign, at London, died intestate, after whose death, to wit, on the 21st day of July in the 20th year of our reign aforesaid, at London aforesaid, administration of all the goods and chattels which were of the said Edmund Spicer at the time of his death was committed by Thomas Exton Doctor of Law, surrogate lawfully appointed of the venerable William Wells Doctor of Divinity official of the archdeacon of the arch-deaconery of Colchester, to one Alexander Davies as the principal creditor of the said Edmund, and that by virtue of the said administration to the said Alexander Davies so as aforesaid committed, the said Alexander Davies, as administrator of the goods and chattels of the said Edmund Spicer, afterwards, that is to say, in the term of St. Michael in the said 20 A year of our reign, came into our Court before us at Westminster in the county of Middlesex by Richard Somer then his attorney, and brought then there into the said Court his certain bitt against the said Edward Turner in the custody of the marshal, &c. of a plea of trespass upon the case, and there were pledges of prosecution, to wit, John Doe and Richard Roe, by which said bill the said Alexander Davies as administrator of all and singular the goods and chattels aforesaid, by the name of Alexander Davies administrator of all and singular the goods and chattels, rights, and credits which were of the said Edmund Spicer, complained of the said Edward Turner then being in the custody of the marshal of our Marshakea before us for this, to wit,(\) that whereas the said Edmund, in his life-time, (1) The present method of declaring is much shorter than that which is above in 872 TURNER V. DA VIES 2 WMS. 8AUND. 13& that is to say, on the 1st day of July in the 20th year of our reign, afc the parish of Barking in the county of Essex, was possessed of 481. in monies numbered as of his own proper monies, and being so thereof possessed the said Edmund afterwards, to wit, on the said day and year in the said bill mentioned, at Barking afore-[138]-said, in the county aforesaid, died so possessed of the said monies ; after whose death the said monies afterwards came into the proper hands and possession of the said Edward by finding, and that afterwards, to wit, on the 21st day of July in the 20th year aforesaid, administration of all and singular the goods and chattels, rights, and credits which were of the said Edmund Spicer, at Barking aforesaid in the county aforesaid, was in due manner committed by Thomas Exton Doctor of Law, surrogate lawfully appointed of the said William Wells Doctor of Divinity official of the archdeacon of the archdeaconry of Colchester, to the said Alexander, the principal creditor of the said Edmund, and that the said Edward, although he well knew that the said monies were the proper monies of the said Edmund in his life-time, and did of right belong and appertain to the said Alexander after the death of the said Edmund by reason of the administration aforesaid, yet contriving and fraudulently intending craftily and subtilely to deceive and defraud the said Alexander of the monies aforesaid in that behalf,(2) had not then delivered to the said Alexander the monies aforesaid (although the said Edward afterwards, to wit, on the 1st day of September in the 20th year aforesaid at Barking aforesaid in the county aforesaid, was requested by the said Alexander), but the said Edward afterwards, to wit, on the said 1st day of September in the 20th year aforesaid at Barking aforesaid in the said county of Essex, had converted and disposed thereof to his own use arid benefit, to the damage of the said Alexander of 501. and thereupon he then brought suit, &e. And the said Alexander brought then there into our said Court before us the letters of administration aforesaid, which testified the committing of the administration aforesaid in form aforesaid, the date whereof was the same day and year aforesaid. And it is further shewn to us in our Court before us on the behalf of the said Edward Turner, that such proceedings were had in our said Court upon the said bill so as aforesaid exhibited in our said Court before us against the said Edward Turner, that afterwards, to wit, in the term of Easter in the 21st year of our reign, it was considered by our said Court before us, the said Court then being at Westminster aforesaid, that the said Alexander should recover against the said Edward Turner 511. for his damages which he had sustained as well on occasion of the premises, as for his costs and charges by him about his suit in that behalf expended, as by the record thereof remaining in our said Court before us at Westminster aforesaid more fully appears. And it is further shewn to us on the behalf of the said Edward Turner, that afterwards, that is to say, on the 21st day of June in the year of our Lord 1669, at Westminster aforesaid, before Sir John Kelynge Knt. our Chief Justice assigned to hold pleas before us, Sir William Wylde Knt. and Bart, one of our justices of the Bench, Leoline Jenkins Doctor of Law, Judge or Lieutenant of the High Court of Admiralty of England, Sir Justinian Lewin, and Sir Walter Littleton, Knts. and Doctors of Laws, John Mills, Edward Alderne, Timothy Bald-[139]-wyn, and Richard Lloyd, Doctors of Law, Judges rightly and lawfully delegated and appointed by our commission under our Great Seal of England, the merits and circumstances of certain principal causes of revocation of a grant of letters of administration of the goods, rights, and credits of the said Edmund Spicer, being heard, seen and understood, and fully and maturely discussed by virtue of an appeal in that behalf devolved, which was agitated and italics ; after stating the granting of the administration as above, the declaration would now be in this form : " and whereas also the said Alexander afterwards, as such administrator as aforesaid, in our Court before us at Westminster in the county of Middlesex, that is to say, in the term of St. Michael in the 20th year of our reign, by bill, without our writ, impleaded the said Edward Turner in a plea of trespass on the case for that whereas," &c. Co. Ent. 87 b. (2) The usual way how is, in a declaration in trover, to state the granting of the letters of administration in this place within a parenthesis thus (" to which said Alexander administration of the goods and chattels, rights and credits, which were of the said Edmund, &o.") and not to state it before the breach, as is done here. 2 VMS. SAUND. 149. TRIN. 22 CAR. II. REGIS 873 depending undecided before them in judgment, by virtue of a commission of appeal under our Great Seal of England, between the said Alexander Davies party appellant and complainant of the oue part, and one John Spicer, natural and lawful brother on the side of the father of the said deceased, party appellant and complainant of the other part, the said Judges Delegates rightfully and lawfully proceeding, the parties aforesaid lawfully appearing by their proctors before the said Judges Delegates in judgment; the party of the said John Spicer, that sentence should be given and justice done for hia party, but the party of the said Alexander Davies sentence also for hia party present respectively demanding and praying; the said Judges Delegates, having the whole and entire process in such case before them, proceeded to the definitive sentence of them the said Judges Delegates in manner and form following, that is to say, that because to the said Judges Delegates, inasmuch as from the things done, enacted, deducted, proposed, alleged, and proved in such case, it appeared clearly found on the part of the said John Spicer, that his intention in a certain allegation made among the acts of the Judge from whom in that behalf it was appealed in the first instance of the cause, and in the proceedings of the said Judge, to the said Judges Delegates as aforesaid in that behalf transmitted, mentioned, and in the same cause exhibited, waa sufficiently and fully founded and proved, and that nothing effectual to the contrary on the part of the said Alexander Daviea in that behalf was deduced, excepted, proposed, alleged, or proved, irhich should elude or in any manner weaken the intention of the said John Spicer in that behalf ; therefore the Judges Delegates as aforesaid, having first called on the name of Christ, and putting and having God alone before their eyes, by and with the advice of the learned in the law, with whom in this behalf they communicated, and maturely deliberated, did pronounce, decree, and declare, that the said John Spicer was and is, in the common reputation of men, the natural and lawful brother of the said Edmund Spicer, deceased, of whose rights and credits it was in that cause debated, and for the interest of the said John Spieer, and pronounced and declared that it was rightfully and lawfully proceeded in, pronounced, decreed and revoked by Lewis Griffin clerk, surrogate of the venerable Thomas Exfcon aforesaid Doctor of Law official in and throughout the whole archdeaconry of Colchester, Judge in the first instance of the cause, and also pronounced and declared that the letters of administration of the goods, rights, and credits of the said Edmund Spicer deceased, theretofore [140] granted to the said Alexander Davies by the...

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