Williams, Executor v Williams
| Jurisdiction | England & Wales |
| Court | Exchequer |
| Judgment Date | 03 November 1842 |
| Date | 03 November 1842 |
English Reports Citation: 152 E.R. 430
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 209; 11 L. J. Ex. 386. See p. 476, post.
williams, Executor v. williams. Exch. of Pleas. June 8, 1842.-The indorsement on a second or subsequent writ of summons, issued under the 2 Will. 4, c 39, s. 10, to save the Statute of Limitations, must contain a memorandum, specifying the date, not only of the first writ, but of the return thereto. [S. C. 2 Dowl. (N. S.) 209; 11 L. J. Ex. 386. See p. 476, post] Assumpsit by the plaintiff, as executor of H. R. Williams, deceased, on a promissory note for 551. 10s., made by the defendant, dated the 26th November, 1831, payable to the testator or his order, six months after date. There was also a count on an account stated with the testator in his lifetime The defendant pleaded the Statute of Limitations; to which the plaintiff replied, that heretofore, arid in the lifetime of the said H. R. Williams, deceased, and after the passing of a certain act of Parliament, passed in the 2 Will. 4, intituled, "An Act for Uniformity of Process," &c., to wit, on the 24th day of October, 1837, the defendant, being indebted to the said H. K. Williams, deceased, in respect of the promises and causes of action in the declaration mentioned, the said H. Li. Williams, for the recovery of his damages sustained on occasion of the non-performance by the defendant of the said several promises in the declaration mentioned, sued and prosecuted out of the court of our Lady the Queen, before the Barons of her [175] Exchequer at Westminster, a certain writ close of our said Lady the Queen, called a writ of summons, bearing date the day and year aforesaid, whereby our said Lady the Queen commanded the defendant, therein described of YVernlasdeg, in the county of Carnarvon, that within eight days after the service of the said writ on him, inclusive of the day of such service, he should cause an appearance to be entered for him in her' said Majesty's said Court of Exchequer of Pleas at Westminster, in an action on promises at the suit of the said H. Li. Williams, deceased, and that he should take notice, that in default of his so doing, the said H. R. Williams might cause an appearance to be entered for him, and proceed therein to judgment and execution; which said writ bore date on the day on which the same was issued, to wit, on the day and year aforesaid, was tested in the name of James Lord Abinger, Lord Chief Baron of the said Court, and was indorsed with the names and place of abode of Henry Weeks and William Gilbertson, the attornies suing out the same, and to which said writ was subscribed a memorandum that the same was to be served within four calendar months from the date thereof, including the day of such date, and not afterwards. And the plairjtiff further says, that afterwards, within one calendar month next after the expiration of the said writ, including the day of such expiration, to wit, on the 1st day jsf March, J&..D. 1838, came before the Court the said H. R. Williams, by Henry Weejks arid William Gilbertaon, his attornies as aforesaid, and offered himself against the ^defendant in the action aforesaid, and the said Henry Weeks and William 10 M. &W.176. WLl,[,lAMS V. \VLL[AMS 431 Gilbertson, the attornies who sued out the said writ, then and there returned...
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