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Litigation Practice - From: 1200 To: 1799

This page lists 116 cases, and was prepared on 02 April 2018.

 
Case LXIV 12 Jac 1 Sid 373, 432 Sty 178 1 Vent 135 2 Jo 87 Carth 114, 289 3 Keb 693 Hob 70, Platt's Case [1220] EngR 110; (1220-1623) Jenk 295; (1220) 145 ER 214 (E)
1220


Litigation Practice
In the King's Bench, bail is entered the last day of term, and the bill filed the first, or any other day of the term ; it is sufficient by the course of the court : although in strictness of law, the law takes conusance of the defendant's being in custody, only upon the bail being entered : and that he was delivered by the marshal upon bail. After the bail entered, he is not in custody of the marshall : and yet after the bail and before the bail, where bail is found, the court supposes him in custody, by the course of the court. Affirmed in error.
[ Commonlii ]

 
 Case LIII; 1220 - [1220] EngR 665; (1220-1623) Jenk 258; (1220) 145 ER 184 (A)
 
CASE XLVI 5 E 4, 93 Stamf 85 Ve Na Br 50 [1220] EngR 560; (1220-1623) Jenk 122; (1220) 145 ER 86 (A)
1220


Litigation Practice
A. recovers against B. in a praecipe quod reddat, by default ; the writ of deceit in this case is judicial, and issues out of the Common Pleas, and the process is attachment and distress infinite, and is mentioned in the writ ; and in this case A. and the sheriff, and the summoners and veiors are made parties by this writ; that is, he who was sheriff and made the, return of the summons which by the writ of deceit is alledged to be false. If the present sheriff did this deceit, the writ of deceit aforesaid shall be directed to the coroners. The sheriff in this case for summoner return C. & D, de Dale, yeomen, summonitores ; the tenant shall have an averment aganst this return, that there are in Dale, yeomen, two C.’s and D.’s ; C. and D named in the sheriff’s return to be the summoners, are the elder; and other C. and D. the younger, by which the sheriff has returned the said false summons to be made : this issue, which of them was returned by the sheriff; and whether they be the sumnoners returned by the sheriff or not, shall not be tried by the country, but by the examination of the judges ; as infancy upon a writ of error to reverse a fine levied by him during his nonage ; this nonage shall be tried by inspection, and the examination of the judges, and not otherwise.
[ Commonlii ]
 
Case LVI 38 Eliz 5 Co 85 B, Penryn Case Droit, Error, Bar, Gales, Grand Cape And Petit [1220] EngR 467; (1220-1623) Jenk 259; (1220) 145 ER 185 (A)
1220


Wales, Litigation Practice
A quod ei deforceat is brought in Wales, and prosecuted in the nature of a writ of right, according to the course there ; by force of the statute of l2 E 1 the tenant joins the mise upon the mere right, and afterwards makes default ; and without a petit cape awarded, judgment final is given against him ; the tenant brings a writ of right against the demandant, who had judgment ut supra and execution; he pleads the first judgment in bar : and judgment is given that it is it good bar ; the plaintiff, who was the tenant against whom the first judgment was given, brings a writ of error upon this last judgment ; and assigns for error, that a petit cape was not awarded before the first jitdgrnetit : non allocatur ; the first judgment was affirmed : for although it was erroneous, yet it is in force until it be reversed ; and this writ of error is not to reverse the first judgment, but the second judgment ; the second judgment was affirmed in error.
[ Commonlii ]
 
Case LXXIX 36 Ass Pl 10 [1220] EngR 447; (1220-1623) Jenk 41; (1220) 145 ER 31
1220


Litigation Practice
A retit descends to two co-parceners, one of themi takes all the rent, the other being under age ; and this sister who takes all the rent claims it to belong to herself alone ; then she is disseised of it by A. and she alone bringa an assise for it ; the tenant pleads that the other sister is living and not named in the writ ; by this plea the writ shall abate.
[ Commonlii ]
 
Case LXXI 29 Ass Pl 47 6 E 4, 9 7 H 4, 41 30 Ass Pl 20 [1220] EngR 373; (1220-1623) Jenk 37; (1220) 145 ER 28 (A)
1220


Torts - Other, Litigation Practice
Outlawry is a good plea in an audita querela, for the outlawry does not depend upon the audita querela ; and the judgment against which relief is prayed, is not to be reversed, but only the execution of it. In error, outlawry upon the judgment which is to be reversed by the writ of error, is not a plea,; for the said judgment being the foundation of the outlawry, the reversal of it reverses the outlawry: but a writ of error, to reverse any other judgment thn that upon which the outlawry depends, outlawry is a good plea. 'Tis so of an attaint, where the attaint is to annul the verdict ; and by consequence, the judgment upon which the outlawry depends, doth not disable the plaintiff in the said attaint ; for the foundation is to be taken away, and therefore the outlawry in this case is no plea.
Judged by both benches.
If a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not disable the plaintiff in error; for otherwise, if the outlawry was erroneous, it shall never be reversed.
Exceptio rei cujus dissolutio petitur, nulla est.
[ Commonlii ]
 
2 R 3, 81 1 Cr 452 35 H 7, 16 Statutes, Process, Eviction, Certificate, Retorne De Viscount [1220] EngR 290; (1220-1623) Jenk 163; (1220) 145 ER 105 (B)
1220


Litigation Practice
A statute staple or merchant is once certified in Chancery, there is no occasion for a new certificate if the conusee dies ; but there is occasion if the Chancellor he named by his Christian name, and dies ; or if the first certificate was insufficient. Upon a statute staple, a capias and extent of lands, goods, and chattels are contained in one writ ; but it is not so upon a statute-merchanit. If the land be extended upon this writ, and the body be not found ; a new capias shall not be directed to the sheriff of another county, without a testatum that latitat there. The executor of the conusee must have a new certificate ; for the certificate had in the life of the conusee will not serve. A scire facias does not lie for the executor; for the statute prescribes the process, and that must be used : as Westm 2, cap. 35, gives the writ of ravishment of ward; this writ was not the words vi & armis: for this would not follow the form prescribed by the statute. Lands extended are evicted, at common law a new extent would not lie ; so if the husband died seised in right of his wife : but at this day, by the statute 37 H. 8, where there is a total eviction, a new extent may be awarded. But at common law, and at this day, such eviction does not hinder a capias for the body of the conusor. Where, after a younger statute is extended, an extendi facias upon an elder statute comes to the sheriff; the sheriff has his choice whether to return this matter, or to extend the elder statute.
By all the judges of England.
[ Commonlii ]

 
 Case Viii 27 H 6, 4 28 H 6, 1 4 H 6, 22 By All The Judges of England; 1220 - [1220] EngR 676; (1220-1623) Jenk 108; (1220) 145 ER 76 (B)
 
Case XXXI 19 Ass Pl 4 Artic Super Chartas, Cap 5 [1220] EngR 219; (1220-1623) Jenk 17; (1220) 145 ER 13 (C)
1220


Litigation Practice
An assise was taken in the King's Bench in Norfolk for lands there, the King and his court being there (antientl the courts of King's Bench and Chancery followed the King and his Court).
[ Commonlii ]
 
Case XX 12 Jac 11 Co 56, Bentham's Case 5 Co 38, Tey's Case 10 C 115 Pilfold's Case, 117 A Dyer, 320, 369 8 Co 58, Beeeher's Case, 59 A 11 H 6, 29 Error, Judgment, Verdict, Release, Office De Court [1220] EngR 111; (1220-1623) Jenk 286; (1220) 145 ER 207 (A)
1220


Litigation Practice
Annuity is brought; the plaintiff has a verdict for the annuity, but the verdict does not give any damages or costs ; the plaintiff releases the damages and costs of record : he shall have judment for the annuity for two reasons : this release shall be understood to be before the verdict ; and a writ of error does not lie for the defendant in this case ; for the reIease is for his advantage.
Error, judged and affirmed in error.
If this release had not been ; upon a writ of error brought by the defendant, the court ex officio should reverse the judgment : for, damages and costs are due as well as the annuity.
[ Commonlii ]
 
Case LXXII 11 H 7, 10 35 H 6, 1, By All The Judges In The Exchequer-Chamber Release Le Roy, Jour, Pardon [1220] EngR 84; (1220-1623) Jenk 183; (1220) 145 ER 122 (A)
1220


Litigation Practice
The King has a verdict against A. for debt or damages ; before judgment, the King pardons this debt and damages to A. the King shall have judgment. So it is between common persons. But because that neither a scire facias lies against the King for A. if he be in execution, nor an audita querela if he be not in execution : this pardon and release shall be allowed to discharge the execution.
[ Commonlii ]

 
 CASE LIII 10 E 4, 15 Dyer, 212, 241 Yel 51, 52 Rescous, Return Le Viscount; 1220 - [1220] EngR 50; (1220-1623) Jenk 125; (1220) 145 ER 88 (B)

 
 Case LXXXVII 10 Co 130, Osborne's Case Damages, Fanx Latin, Anglice, Count Hardr 41 Cr Jac 665; 1220 - [1220] EngR 47; (1220-1623) Jenk 270; (1220) 145 ER 194 (A)
 
Case III 1 Jac 1 Arundel v Arundel Error, B R Cr Jac 11 Fines, Prerogatives, Nosme [1220] EngR 37; (1220-1623) Jenk 279; (1220) 145 ER 201 (D)
1220


Litigation Practice
A dedimus potestatem for the caption of a fine is directed to A. B. esquire : he takes the conusance, and afterwards is made a knight, and certifies the conuzance by the name of A. B. knight : this fine was affirmed upon a writ of error brought. The use is that the justices of both benches, and the barons of the Exchequer, take the conusance of fines in their circuits ; and afterwards, before the return of them, it happens that they are made knights ; and as such, they certify the captions : and well.
[ Commonlii ]

 
 Case XXIV 1 H 7, 5, 9 Fees Del Judges; 1220 - [1220] EngR 31; (1220-1623) Jenk 167; (1220) 145 ER 109 (B)
 
1 H 7, 20 5 Co 88 A B, Garnon's Case Execution [1220] EngR 23; (1220-1623) Jenk 169; (1220) 145 ER 110 (D)
1220


Litigation Practice
A. brings trespass vi & armis against B. B. is condemned in damages in the time of one King, who demises ; upon the coronation of the new King there was a pardon of this fine ; after four years the defendant was taken by a capias pro fine: for the King : upon a petition to the King in this case he shall be discharged; and shall not be in executiori for the plaintiff, although he should pray it ; for the capias pro fine issued erroneously after a pardon ; and he cannot be in execution at the suit, and upon the prayer of the party in this case, neither after the year is ended, nor within the year ; for the reason aforesaid.
By all the judges of England.
[ Commonlii ]

 
 Case LXXXIX 2 Keb 260, Pl 9 Jac Hob 5, Crowe's Case; 1220 - [1220] EngR 278; (1220-1623) Jenk 310; (1220) 145 ER 226 (D)
 
Case XCI 11 Jac 9 H 6, 7 1 Cr 417, 8, 386 Hob 18, 19, 20, 75, 116, 119 Cr 338, Marsham v Jolles Obligation, Variance Hob 20 2 Roll 147 Cr Jac 190, 290, 309 [1220] EngR 91; (1220-1623) Jenk 339; (1220) 145 ER 246 (C)
1220


Litigation Practice
Debt upon an obligation ; the declaration was pro sexaginta libris, the bond was for sexinginta libris : the plaintiff had judgment affirmed in error. For the words in the declarationi arid the bond are to the same effect.
[ Commonlii ]
 
Anonymous [1482] EngR 1 (1482-83) Cary 17; (1482) 21 ER 9 (H)
1482


Litigation Practice
Giving day to one, if shall help the other. So if two be jointly and severaIly bound to pay money, and the obligee will give longer day (or other favour) to the one, and then will sue the other for the debt, he which is sued shall sue in Chancery
[ Commonlii ]
 
Bruce v Wardlaw [1530] Mor 15138
15 Jan 1530
SCS

Litigation Practice
In a suspension of double-poinding raised by persons subject in payment to the party found to have best right, if the said suspension be called, and the process seen, the suspenders may not pass from the suspension, or discharge the party to compear for them, till the matter be discussed betwixt the parties called.
[ Bailii ]

 
 Hamilton v Hamilton; SCS 11-Feb-1540 - [1540] Mor 662

 
 Tenants of Dennie v Lords Fleming and Sanctjohn; SCS 5-Dec-1553 - [1553] Mor 623
 
Re-Extent [1559] EngR 31; (1559-1646) Toth 165; (1559) 21 ER 156 (E)
1559


Litigation Practice
A re-extent awarded antea, inter Chivers and Bampton.
[ Commonlii ]

 
 Andrew Wardlaw v The Laird of Torrey's Heirs; SCS 21-Mar-1561 - [1561] Mor 1702

 
 Alexander Paterson v David Chieslaw; SCS 29-Mar-1561 - [1561] Mor 654

 
 Elizabeth Maxwell v John Walkinschaw; SCS 19-Dec-1561 - [1561] Mor 643

 
 Bulwer's Case; 1572 - [1572] EngR 58; (1572-1616) 7 Co Rep 1; (1572) 77 ER 411
 
Ferrer's Case [1572] EngR 137; (1572-1616) 6 Co Rep 7; (1572) 77 ER 263
1572


Litigation Practice
Rasolutions and differences when a bar in one action, shall be a bar in another
[ Commonlii ]

 
 Berd v Lovelace; 1576 - [1576] EngR 10; (1576-77) Cary 61; (1576) 21 ER 33 (E)

 
 Waters v Berd; 1579 - [1579] EngR 144; (1579) Cary 73; (1579) 21 ER 39 (C)
 
Shelley's case; Wolfe v Shelley (1581) 1 Co Rep 93b
1581

Sir Thomas Bromley, Lord Chancellor
Litigation Practice
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were made. The reason given was that "the record is to be understood of the whole day, and relates without division to the first instant of the day."
1 Citers


 
Weare v Adamson [1583] Sav 56; (1583) 123 ER 1010
1583


Litigation Practice, Constitutional
An information was laid in the name of the Queen. The defendant requested a non-suit saying that she had not appeared at court. Held. The objection failed. The Queen was deemed 'always present' in court.


 
 Heydon's Case; 1584 - (1584) 3 Co Rep 7a; [1584] EWHC Exch J36; 76 ER 637; Pasch 26 Eliz; 20 Eliz Rot 140
 
Cutler v Dixon (1585) 4 Co Rep 14b; [1585] 76 ER 886; [1585] EngR 96
1585
KBD

Defamation, Litigation Practice
"It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of justice in such case: and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain for fear of infinite vexation." and "if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation."
1 Citers

[ Commonlii ]
 
Mylward v Weldon [1595] EWHC Ch 1
15 Feb 1595
ChD

Litigation Practice
Bailii FORASMUCH as it now appeared to this Court, by a report made by the now Lord Keeper, (being then Master of the Rolls,) upon consideration had of the plaintiff's replication, according to an order of the 7th of May anno 37th Reginae, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same replication, and by whose advice it was done, to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby; the execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginae, suspended, without any express cause shewed thereof in that order, and was never since called upou until the matter came to be heard, on Tuesday lost, before the now Lord Keeper; at which time some mention was again made of the same replication; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff's son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard's head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.
[ Bailii ]

 
 Slade's Case; 1598 - [1598] EngR 39; (1598) 4 Co Rep 92; (1598) 76 ER 1074; [1598] EngR 40; (1598) 4 Co Rep 91; (1598) 76 ER 1072

 
 Lord Balmerino v Forrester; SCS 21-Jun-1605 - [1605] Mor 341

 
 Lord Salton v Laird of Cluny; SCS 1610 - [1610] Mor 64
 
Lacon v Barnard (1626) Cro Car 35
1626


Litigation Practice
A judgment in trespass is not a bar to an action in conversion.

 
Scavage v Freeman and Co [1653] EngR 1675; (1653) Cro Eliz 69; (1653) 78 ER 329 (C)
1653


Litigation Practice
Issue joined in battle by some of the appellees ; Not guilty pleaded by others ; and the proceedings in French.
[ Commonlii ]
 
Woodyard v Dannock And Trundle [1653] EngR 2235; (1653) Cro Eliz 762; (1653) 78 ER 993
1653


Litigation Practice
Debt upon an obligation of six hundred pounds, dated 4th September, 37 Eh. conditioned, that if he were seised in his demesne as of fee, the (lay of the obligation made, of such copyhold lands in Sybton-Docking, and if the said lands be discharged of all incumbrances made by him, except the estate and title of jonture of his wife Elizabeth, that the the obligation should be void. The breach is assigned in hoc, that the defendant, before the obligation made, had surrendered those lands apud Sybton praeclict. to the use of Elizabeth his wife for life. The defendarrt pleaded, that he did riot surrender it modo et format The plaintiff sur-rejoins, quod sursum reddidit apud Sybton-Docking, modo et forma, and co and thereupon a venire facias was awarded to Sybton, and tried for the plaintiff, and judgment accordingly. Error was now thereof brought.
And the first error assigned was, because the veniire facias is from Sybtori, where it ought to have been from Sybton-Docking; for so is the rejoinder, which makes the issue.
[ Commonlii ]
 
Samson And Gatefield's Case [1653] EngR 1662; (1653) Godb 400; (1653) 78 ER 236 (B)
1653
KBD

Litigation Practice
Error was brought to reverse a judgment given in the Court of Virge in an action upon the case; where the original process fuit a sommons, whereas, it ought to have been an attachment.
[ Commonlii ]
 
Stainer v James [1653] EngR 1853; (1653) Cro Eliz 311; (1653) 78 ER 561 (B)
1653


Litigation Practice
If the sheriff's name be omitted in the process to the jurors, it is a cause to stay the judgment.
[ Commonlii ]
 
Brown v Nelson [1658] EngR 107; (1658) Sty 317; (1658) 82 ER 741 (A)
1658


Litigation Practice, Licensing
Whether a judgement given against one of two defendants were good.
An action of debt upon the Statute 7 Ed. 6. for selling of wine without licence, was brought against 2 defendants, they both plead nil debet, whereupon issue being joyned, a special verdict was found, viz. that as to one nil debet, and that as to the other he had drawn a pint of wine without licence, and upon this, judgement was given against him that was found culpable; it was questioned whether this were a good judgement. But Roll Chief Justice concluded it was a good judgement, and cited many cases adjudged in point to prove it, and one in particular in an action upon the statute for dying with logwood, and he took a difference between an action grounded upon a joynt contract, or a joint trespasse, and an action brought joyntly upon a statute against two, or for a tort done by two, as this is upon the statute. In the first case judgement cannot be given against one of the contractors, in the other it may.
[ Commonlii ]
 
- And The Lord Moone [1658] EngR 18; (1658) Sty 118; (1658) 82 ER 576 (B)
1658


Litigation Practice, Constitutional
For a supersedeas for a peer of the realm. Supersedeas.
My Lord Moone had a sute commenced against him in this Court, and tbereupon he moves by his councel upon an affidavit that he was a peer of the realm, and a Lord of the Parliament, and therefore ought not to be sued, and prayes for a supersedeas to stay the proceedings. Roll lustice, Plead your privilege, for upon an affidavit we will make no rule, or else acquaint the other party that he is a peer of the realm, and it is like he will forbear to proceed thereupon. But you ought not to troubl the Court with such notions as these.
[ Commonlii ]
 
Weldon v Strudder [1658] EngR 747; (1658) Sty 379; (1658) 82 ER 794 (A)
1658


Litigation Practice
Motion to enter the death of the plaintiff on the roll.
It was moved to the Court that the plaintiff after he had obteyned a verdict, and before judgenent entred, dyed, and prayed that this might be entred upon the roll ; but the Court denyed it, and said it could not be.
[ Commonlii ]
 
Danvers v Wellington [1660] EngR 94; (1655, 1656, 1657, 1658, 1659 and 1660) Hard 173; (1660) 145 ER 437 (C)
1660


Litigation Practice

[ Commonlii ]
 
Malpas v Vernon [1670] EngR 19; (1670-71) 2 Rep Ch 45; (1670) 21 ER 611 (C)
1670


Litigation Practice
A Bill of Review, to reverse a Decree, whereby the Plaintiff is decreed to pay more Money than by his Agreement on his Purchase he was to pay.
[ Commonlii ]
 
John Hole v Christopher Harrison [1673] EngR 62; (1673) Fin H 15; (1673) 23 ER 9 (A)
1673


Litigation Practice

[ Commonlii ]
 
Winscombe v Piggott [1675] EngR 1814; (1675) 1 Rolle 39; (1675) 81 ER 311
1675


Litigation Practice

[ Commonlii ]
 
Roy v Dighton and Alias [1675] EngR 1356; (1675) 1 Rolle 220; (1675) 81 ER 445 (B)
1675


Litigation Practice
Hab. Corp sur commitment per alt commission
[ Commonlii ]

 
 Browne v Downing; 1676 - [1676] EngR 71; (1676) 2 Rolle 194; (1676) 81 ER 745
 
Burton v Browne and Ward [1676] EngR 86; (1676) 2 Rolle 265; (1676) 81 ER 790
1676


Litigation Practice

[ Commonlii ]

 
 Boeve v Skipwith; 1678 - [1678] EngR 10; (1678-79) 2 Rep Ch 142; (1678) 21 ER 640 (B)
 
Ash v Abdy (1678) 3 Swans 664
1678

Lord Nottingham
Litigation Practice
Lord Nottingham took judicial notice of his own experience when introducing a Bill in the House of Lords.
1 Citers



 
 Henry Needler and Joanna v Thomas Kendall And Mary Kendall And Mary Hallett; 1680 - [1680] EngR 124; (1680) Fin H 468; (1680) 23 ER 253
 
Pigot's Case [1682] EngR 311; (1682) Pop 94; (1682) 79 ER 1205 (A)
1682


Litigation Practice

[ Commonlii ]
 
Gray and Ux v Bull [1682] EngR 494; (1682) 1 Vern 86; (1682) 23 ER 329 (A)
17 Nov 1682


Litigation Practice
Bill to be relieved against a release as gained by fraud; it appeared here there had been anotehr release given; and though it was said that it was got in the same manner; yet not being taken notice of in the bill nor relief prayed against it, bill was dismissed.
[ Commonlii ]
 
Vaughan v Carsewell And Owen and Co [1685] EngR 3792; (1685) 2 Keb 553; (1685) 84 ER 347 (D)
1685


Litigation Practice
Saunders excepted to a judgment in a quod ei deforceat in the Grand Sessions protestando to follow in nature of a writ of entry in the post the tenant vouoht the demandant counterpleaded that it was out of the line, and after adjournment there to another term on demurrer, judgment peremptory was given, which per Jones pro defendant in the error is well on 8 H. 7, 7, per Vavisor, 11 H. 4, 22, peremptory, Br. 9 and 10, for albeit in an assize the party can vouch none but the party named in the writ, yet however when this is counterpleaded it's peremptory, which the Court agreed after verdict, but this being after demurrer, adjornatur.
[ Commonlii ]
 
The Lord Byron v Sir William Juxon, Lessor of Walker [1685] EngR 3631; (1685) 2 Keb 853; (1685) 84 ER 540 (B)
1685


Litigation Practice
Levins pray’d leave to discontinue a writ of error brought in the ejector’s name of judgment in the County-Palatine of Lancaster against him by default, shewing a release of errors by the casual ejector, which the Court denied, but left them to nonsuit the plaintiff in error, or their own course, privilege approaching.
[ Commonlii ]
 
The King v Wagstaffe, and others [1685] EngR 3558; (1685) 1 Keb 938; (1685) 83 ER 1331 (B)
1685


Litigation Practice
The jurors being severally fined, and imprisoned till payment, as it appeared by the retorn of the habeas corpus made by the Mayor, &c. of London, or till they were otherways discharged by due course of law : the defendants offered to bring the mony into Court, and so prayed time till the next term : and there can be inconvenience, for the persons are committed but till the fines paid, and they do thus pay it under a rule : but by Twisden, this payment must be actual, and not conditional ; nor was this ever done on an execution, unless on the civil side, which Keeling agreed ; and though the Kings Counsel should consent, they could not do it ; but the retorn being filed, it was excepted, that it was said in issues joyned in indictment of trespass in contemptum domini Regis, and not Curia ; sed non allocatur. 2. They are said, committed for going against direction of the Court on issues in several trespasses, &c. not saying perpetrat’ & commissis, but only whereof the then prisoners were indicted ; sed non allocatur, this being the question then to be tried. 3. The jury (per Curiam on Yelvert. 23, Whartons case, and in Noy 48, Bendlows Rep. Norris's case, which was Henego Pierce’s case) are not judges of fact, so as to go clearly against it. every Inferiour Cour t mig
[ Commonlii ]
 
Barnardiston v Soam (No 3) [1685] EngR 217; (1685) 3 Keb 586; (1685) 84 ER 894 (A)
1685


Litigation Practice
Offly for the plaintiff, that debt lieth pending error n 22 H, 6, 38, being a new original, which the Court agreed ; and a respondeas ouster ; and notwithstanding it was affirmed that judgment in debt pending error here was reversed in Exchequer Chamber.
1 Cites

1 Citers

[ Commonlii ]
 
- And Clatch [1685] EngR 81; (1685) 3 Keb 708; (1685) 84 ER 965 (D)
1685


Contract, Litigation Practice
Debt on obligation of 600l. The defendant pleads that condition was to pay a less sum by a day, and that before the day he paied in satisfaction, which per Curiam is an ill plea, having not demanded oyer of the condition.
The plaintiff replied, demanding oyer that the condition was to pay a less sum by a day, and the defendant demurs without shewing that the money was paied at the day, which per Curiam is ill; and judgment must be against the plaintiff. Sed adjornatur.
[ Commonlii ]

 
 CCXIII The Queen And Sir John Savells Case; 1687 - [1687] EngR 837; (1687) 4 Leo 104; (1687) 74 ER 759 (B)
 
Attorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others [1690] EngR 71; (1690) Prec Ch 13; (1690) 24 ER 7 (A)
9 Jul 1690


Litigation Practice
The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King's name is only made use of by the form of the court . . the suit is not for the King's duty but the relator's interest.
1 Citers

[ Commonlii ]
 
Wells v Williams (1697) 1 Ld Raym 292
1697


Litigation Practice
An alien enemy living in England by the King's licence and under his protection could bring a court action.
1 Citers


 
Dubois v Hole and wife [1708] EngR 61; (1708) 2 Vern 613; (1708) 23 ER 1002
14 Jul 1708


Litigation Practice
If a bill is brought against Baron and Feme for a demand out of the seperate estate of the feme ; and the husband is beyond sea, and not amenable by the process of the Court ; yet, if the wife is served with a Subpoena, she must appear, and answer the plaintiff's Bill.
[ Commonlii ]
 
- Danells Case [1714] EngR 164; (1714) 1 Sid 48; (1714) 82 ER 962 (B)
1714


Litigation Practice
Actian fuit pur ceux parolls, Thou art a forsworn fellow, and we will prove thee so, and thou canst take no benefit of the law, et adjudge que laction ne gist quia est in la future temps.
[ Commonlii ]
 
John Goddard, Gentleman v Sir John Swinton, Baronet [1715] UKHL Robertson_162; (1715) Robertson 162
30 Aug 1715
HL

Scotland, Litigation Practice
Foreign Decree - The effect of a judgment of the Court of King's Bench, when founded upon by a pursuer against a defender in the Court of Session.
Homologation - The defender had in England been surrendered by his bail, who were discharged ; and the defender executed an instrument, importing that the judgment should not be released by such discharge; this instrument found not to homologate the judgment.
[ Bailii ]
 
Duke of Dorset v Serjeant Girdler [1720] 24 ER 238; (1720) Prec Ch 531; [1720] EngR 10
1720


Litigation Practice
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: "the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth."
1 Citers

[ Commonlii ]
 
Sir Robert Gordon, of Gordonstoun, Bart v James Brodie of Brodie, Esq; [1720] UKHL Robertson_259; (1720) Robertson 259
8 Feb 1720
HL

Scotland, Litigation Practice
Process - Incident Diligence - In mutual actions relative to the property of a common, several witnesses on both sides, are examined upon an act and commission; and upon a second diligence others, who had not before appeared, are also examined: one of the parties gives in a new list of witnesses, praying a new act and commission, and to have some witnesses re-examined on commission who had already deponed before the Court; but his petition is refused.
[ Bailii ]
 
John Robertson of Goodlyburn v George Earl of Kinnoul [1720] UKHL Robertson_287; (1720) Robertson 287
16 Mar 1720
HL

Scotland, Litigation Practice
Trust - Oath of Party - A person who had conveyed his feu to his superior's son, having contended that the conveyance was deposited with a trustee, till certain conditions were fulfilled: after obtaining the oath of the superior, is also allowed the oath of the son, the disponee.
Peer - A matter referred to a peer's oath.
[ Bailii ]
 
Hunter v Allen and Son Feme In Error Icy [1721] EngR 140; (1721) Palm 188; (1721) 81 ER 1035 (C)
1721


Litigation Practice

[ Commonlii ]
 
Burrows v Jemino (1726) 2 Stra 733
1726

Lord King
Litigation Practice, Jurisdiction
A debt or liability arising in any country may be discharged by the laws of that country, and that such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be an effectual answer to the claim, not only in the courts of that country, but in every other country.
1 Citers


 
Andrew v Raymond [1728] EngR 560; (1728) 2 Lee 571; (1728) 161 ER 444 (A)
15 Nov 1728


Litigation Practice
In a suit for tithes an article of an allegation was offered to the Court, referring to an old terrier made 106 years before. It was objected that the terrier was not legally and duly made, that the article referring to that which could be no evidence could not be relevant.
[ Commonlii ]
 
Piercy Lessee of James Piercy v Cumberland [1729] EngR 196; (1729) T Jones 164; (1729) 84 ER 1198 (A)
1729


Litigation Practice
Dugdale’s baronage not allowed in evidence to prove a descent.
[ Commonlii ]
 
Morice v The Bank of England [1732] EngR 160; (1732) Kel W 43; (1732) 25 ER 487
1732


Litigation Practice

1 Citers

[ Commonlii ]
 
- v Romney [1737] EngR 2; (1737-1784) Amb 62; (1737) 27 ER 35 (B)
1737


Litigation Practice
A commission to take an answer of a person resident in a foreign country at war with us, must be executed in that very country ; a commission to examine witnesses at the nearest neutral port.
[ Commonlii ]

 
 Pinheiro v Porter; 1738 - [1738] EngR 611; (1738) 3 Swans 364; (1738) 36 ER 895
 
The Magistrates of Montrose v David Erskine of Dun, Esq One of The Senators of The College of Justice [1738] UKHL 1_Paton_222; (1738) 1 Paton 222
12 Feb 1738
HL

Scotland, Litigation Practice
Process - Appeal - It being objected that the Lord Advocate, who had an interest in the cause, and who had been a party in the Court of Session, was not made a party to the appeal; and that the cause had not been finally determined in the Court of Session; - the appeal was dismissed.
[ Bailii ]
 
Sir James Cunningham, of Milnecraig v Captain John Chalmer of Gadgirth, and The Earls of Loudon, and Stair, and Colonel Dalrymple [1740] UKHL 1_Paton_267; (1740) 1 Paton 267
24 Mar 1740
HL

Litigation Practice, Scotland
A proof taken in virtue of a diligence from the Court of Session, in the course of a submission, which came to an end without any decreet-arbitral being pronounced, admitted in the particular circumstances of the case, in a subsequent litigation between the same parties, the power of re-examining the witnesses being reserved.
The Court of Session having (by an interlocutor not appealed from) refused to make certain persons parties to a depending action,-it was found to be incompetent to call them as parties in the House of Lords, in an appeal from the final judgment in the action.
[ Bailii ]
 
John, Lord Viscount of Arbuthnot and Others, Creditors of William Morison, Late of Prestongrange, Esq Deceased v John Spottiswood of Spottiswood [1740] UKHL 1_Paton_284; (1740) 1 Paton 284
22 Apr 1740
HL

Litigation Practice
An extracted judgment of the Court of Session in favour of a pursuer not held to be res judicata, on the ground of its having been obtained by collusion on the part of the defender.
[ Bailii ]
 
Rixon v Francis [1744] EngR 1000; (1744) 1 Barn KB 373; (1744) 94 ER 252 (A)
1744


Litigation Practice

[ Commonlii ]
 
Wirley And Budder [1744] EngR 1687; (1744) 2 Barn KB 313; (1744) 94 ER 522 (C)
1744


Litigation Practice
When several actions are brought for one and the same cause, how far the party shall have a right to proceed to judgment in all of them.
[ Commonlii ]
 
The Mayor of The City of London And Swinland [1744] EngR 1570; (1744) 1 Barn KB 455; (1744) 94 ER 306 (B)
1744


Litigation Practice
When a rule is made for the inspection of books, in what form it is to be drawn up.
[ Commonlii ]
 
(Unnamed) [1750] EngR 194; (1750) 2 Ves Sen 25; (1750) 28 ER 17 (D)
22 Oct 1750


Litigation Practice

[ Commonlii ]
 
Sutton v Smith And Others [1753] EngR 39; (1753) 1 Lee 207; (1753) 161 ER 77
10 Feb 1753


Litigation Practice
An application for an administration pendente lite rejected because no special cause for granting it was set forth.
[ Commonlii ]
 
Cox v Thompson, Alias Smith [1753] EngR 52; (1753) 1 Lee 283; (1753) 161 ER 105 (A)
6 Mar 1753


Litigation Practice
The interest of a father established, but without costs.
[ Commonlii ]
 
Winchlow, Administratix of Smith v Smith [1753] EngR 106; (1753) 1 Lee 416; (1753) 161 ER 153 (B)
16 Jul 1753


Litigation Practice
Answers in a proceeding for an inventory and account, held to be sufficiently full.
[ Commonlii ]
 
John Gordon of Auchanachy, and Alexander Gordon, His Trustee v Miss Grizel Ogilvie [1762] UKHL 2_Paton_61; (1762) 2 Paton 61
22 Mar 1762
HL

Litigation Practice, Limitation
Reduction - Transaction - Res Judicata - Representation - Prescription.-
Circumstances in which transaction with predecessor, was held to bar the challenge of the heir, though the deed of renunciation embodying this transaction was also sought to be reduced; and the heir insisted that he was not bound by his mother's deed, he not representing her, but passing by and claiming right from a more remote predecessor. Also, that res judicata barred action; but plea of prescription repelled, in respect of interruption.
[ Bailii ]
 
Douglas, An Infant, and His Guardians, The Duchess Dowager of Douglas and Others v The Duke of Hamilton; Lord Douglas Hamilton, and Others [1764] UKHL 6_Paton_763; (1764) 6 Paton 763
13 Mar 1764
HL

Litigation Practice
Title to Sue - Proof - Witness - Re-examination. - Held (1) that the respondents had sufficient title and interest to sue. (2) That it was competent to examine witnesses of new, who had been examined in Paris, in a process tournelle criminelle, in regard to the same matters. (3) That it was not necessary to make the cancellation of the witnesses' previous testimony an absolute condition of their being examined of new; and, therefore, their evidence allowed to be taken, but to be sealed up, reserving all objections. (4) Copies or excerpts of documents, and proceedings had before a foreign court, were ordered to be produced in case the originals themselves could not be got, or delivered up.
[ Bailii ]

 
 Rex v Skinner; 1772 - (1772) Lofft 54; [1772] 98 ER 529
 
Marriott v Hampton [1775-1802] All ER Rep 631
1775
KBD
Lord Kenyon CJ
Equity, Litigation Practice
The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to pay again. He then found the receipt and brought an action for money had and received to recover the second payment. Held: Where money has been wrongly paid under the compulsion of legal process it cannot be recovered back in action for money had and received to the payer's use.
Lord Kenyon said: "I am afraid of such a precedent. If this action could be maintained I know now that cause of action could ever be at rest. After a recovery by process of law there must be an end to litigation, otherwise there would be no security for any person."
1 Citers


 
Ballantine v Golding (1784) Cooke's Bankrupt Laws 419
1784

Lord Mansfield
Insolvency, Jurisdiction, Litigation Practice

1 Citers



 
 Rex v Shipley; Rex v Dean of St Asaph; 1784 - (1784) 21 St Tr 847; (1784} 4 Doug KB 73; (1784) 99 ER 774; (1784) 3 Term Rep 428n
 
Ex Parte King [1789] EngR 805; (1789-1817) 2 Ves Jun Supp 331; (1789) 34 ER 1119 (A)
1789


Litigation Practice

[ Commonlii ]
 
Jerrard v Saunders [1789] EngR 1304; (1789-1817) 1 Ves Jun Supp 245; (1789) 34 ER 772 (B)
1789


Litigation Practice

[ Commonlii ]
 
Jerrard v Saunders [1789] EngR 1305; (1789-1817) 1 Ves Jun Supp 290; (1789) 34 ER 794 (B)
1789


Litigation Practice

[ Commonlii ]
 
Raphael v Boehm [1789] EngR 1808; (1789-1817) 2 Ves Jun Supp 355; (1789) 34 ER 1130 (A)
1789


Litigation Practice

[ Commonlii ]
 
Evans v Evans [1789] EngR 605; (1789-1817) 1 Ves Jun Supp 45; (1789) 34 ER 685 (B)
1789


Litigation Practice

[ Commonlii ]
 
Wood v Griffith [1789] EngR 2314; (1789-1817) 2 Ves Jun Supp 598; (1789) 34 ER 1245 (A)
1789


Litigation Practice
It mould be most injurious to suitors if (unless by order made on a special case shown) an appeal, even to the House of Lords, were to have the effect of staying proceedings under a decree
[ Commonlii ]
 
Grey v Saunders [1790] EngR 755; (1732, 1756, 1790) Bar N 248; (1790) 94 ER 899 (B)
1790


Litigation Practice

[ Commonlii ]

 
 Benwell v Black; 12-May-1790 - [1790] EngR 2362; (1790) 3 TR 643; (1790) 100 ER 780 (A)
 
Worlich v Massy and Co [1791] EngR 1251; (1791) Cro Jac 67; (1791) 79 ER 57
1791


Litigation Practice
If a person become surety for the appearance of the plaintiff in Chancery, "ad dandum juri in hoc parte, and that he shall prosecute with effect," it imports that the surety shall "pay the condemnation, if the plaiiitiff does not pay it, nor prosecute with effect."
[ Commonlii ]
 
The Mercers and Ironmongers of Chester v Radford [1793] EngR 1216; (1793) 2 Lev 33; (1793) 83 ER 440 (A)
1793


Litigation Practice
The Court of Equity at Chester, grants a trial in the county at large
[ Commonlii ]
 
- v - (Unnamed) [1793] EngR 1253; (1793) 1 Anst 201; (1793) 145 ER 844 (B)
1793


Litigation Practice
Simeon, on behalf of the plaintiff, moved for a commission to examine witnesses abroad: he stated the bill to be merely for discovery, for the purpose of supporting an action at law brought by the plaintiff here against the defendant; and therefore considered the motion as of course, being only in his own delay.
By the Court.- If the bill had been for relief, you clearly must have moved this upon affidavit of materiality; for a plaintiff may often have a desire to delay his own suit. The same principle applies to this case.
[ Commonlii ]
 
Waldridge v Kennison (1794) 1 Esp 142
1794


Litigation Practice
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case.
1 Citers



 
 Lesauld v Dyer; 1794 - [1794] EngR 1005; (1794) 6 Mod 57; (1794) 87 ER 818 (B)
 
Braceby v Dalton [1795] EngR 603; (1795) 2 Str 705; (1795) 93 ER 796 (C)
1795


Litigation Practice
In an action upon the case Mr Wynne moved on affidavit that the defendant did not know the plaintiff that the attorney for the plaintiff might give an account who his client was, and where he lived, But the Court refused it, saying it had never been done but in a qui tam
[ Commonlii ]
 
Dyson v Ironmonger Et Uxor [1795] EngR 1597; (1795) 2 Str 1197; (1795) 93 ER 1124 (C)
1795


Litigation Practice
Where a party is ordered to attend the Court, the Court permitted counsel to examine him, but would not swear him.
[ Commonlii ]
 
The Company of Mercers And Ironmongers of Chester v Bowker [1795] EngR 3370; (1795) 1 Str 639; (1795) 93 ER 751 (A)
1795


Litigation Practice
Action tried before a mayor who was no party, judgment being given by a subsequent one, was referred on that account.
[ Commonlii ]
 
Turner v Railton (1796) 2 Esp 474
1796

Lord Kenyon
Litigation Practice
Evidence was admitted that the defendant's former attorney had admitted the debt claimed and made an offer on the defendant's behalf to pay a certain sum on account. Lord Kenyon said: "Concessions made for the purpose of settling the business for which the action is brought, cannot be given in evidence; but facts admitted I have always received."
1 Citers



 
 Bragner v Joseph Langmead; 15-Nov-1796 - [1796] EngR 2497; (1796) 7 TR 20; (1796) 101 ER 834
 
Cazelet v Dubois [1797] EngR 515; (1797) 1 Bos & Pul 81; (1797) 126 ER 790 (A)
5 Jul 1797


Litigation Practice
It is in the discretion of the Court to put a Defendant under terms, who moves to have the issues levied under several distringas's restored to him on his appearance, according to: I0 G;. 3, c. 50, e. 4.
[ Commonlii ]
 
Williams, Executor of Elizabeth Breedon v Breedon [1798] EngR 236; (1798) 1 Bos & Pul 329; (1798) 126 ER 932
19 Nov 1798


Litigation Practice
Where a general verdict has been given on two counts, one of which is bad, and it appears by the Judge’s notes that the jury calculated the damages or evidence applicable to the good count only, the Court will amend the verdict by entering it on that count, though evidence was given applicable to the bad count also.
[ Commonlii ]
 
Long v Miller [1799] EngR 272; (1799) 1 Wils KB 23; (1799) 95 ER 471 (B)
1799


Litigation Practice
Declaration was delivered within the term: rule to plead was given the 7th of May, and expired the 11th, and no plea being put in, defendant applying for time, but no order made by the Judge, after the time for pleading was out, and before plaintiff bad signed judgment, the defendant being pleaded abatement ; and the question now was, whether this plea being after the time for pleading was out and a dilatory, should hinder the plaintiff from signing judgment? And per Cur - The pIaintiff shall have his judgment, for pleas in abatement must be pleded in four days, if the declaration be delivered before the last four days in term : if in those last four days, defendant must plead after a special imparlance within the first four days of the next term ; and this is the practice of the Court : and although fair pleas to the action are received alter the rules to plead are out, and before judgment at any time, yet dilatory pleas never are, and no Court ever favoured them.
[ Commonlii ]
 
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