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Litigation Practice - 1200- 1799

All matters relating to civil litigation practice. See also County Court Rules, Costs. More recent cases will also be found under the Civil Procedure Rules area.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 37 cases, and was prepared on 21 October 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
2 R 3, 81 1 Cr 452 35 H 7, 16 Statutes, Process, Eviction, Certificate, Retorne De Viscount; 1220
CASE XLVI 5 E 4, 93 Stamf 85 Ve Na Br 50; 1220
Berd -v- Lovelace; 1576
Shelley's case; Wolfe -v- Shelley (1581) 1 Co Rep 93b
1581

Sir Thomas Bromley, Lord Chancellor
Litigation Practice Casemap
1 Citers
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."
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) 3 Co Rep 7a; [1584] EWHC Exch J36; 76 ER 637; Pasch 26 Eliz; 20 Eliz Rot 140
1584

Lord Coke
Litigation Practice
1 Citers
Lord Coke stated the basis of the mischief rule of interpretation: "For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1st). What was the common law before the making of the Act? (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
Link[s] omitted
Cutler -v- Dixon (1585) 4 Co Rep 14b; [1585] 76 ER 886; [1585] EngR 96
1585
KBD
Defamation, Litigation Practice Casemap
1 Citers
"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."
Link[s] omitted
Mylward -v- Weldon; ChD 15-Feb-1595
Lacon -v- Barnard (1626) Cro Car 35
1626

Litigation Practice
A judgment in trespass is not a bar to an action in conversion.
Brown -v- Nelson; 1658
Danvers -v- Wellington [1660] EngR 94; (1655, 1656, 1657, 1658, 1659 and 1660) Hard 173; (1660) 145 ER 437 (C)
1660

Litigation Practice
[ Commonlii ]
Ash -v- Abdy (1678) 3 Swans 664
1678

Lord Nottingham
Litigation Practice Casemap
1 Citers
Lord Nottingham took judicial notice of his own experience when introducing a Bill in the House of Lords.
Pigot's Case [1682] EngR 311; (1682) Pop 94; (1682) 79 ER 1205 (A)
1682

Litigation Practice
[ Commonlii ]
The King -v- Wagstaffe, and others; 1685
- And Clatch; 1685
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 ]
Wells -v- Williams (1697) 1 Ld Raym 292
1697

Litigation Practice Casemap
1 Citers
An alien enemy living in England by the King's licence and under his protection could bring a court action.
Duke of Dorset -v- Serjeant Girdler [1720] 24 ER 238; (1720) Prec Ch 531; [1720] EngR 10
1720

Litigation Practice Casemap

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

Lord King
Litigation Practice, Jurisdiction Casemap
1 Citers
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.
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
Link[s] omitted
_ -v- Romney; 1737
(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.
Link[s] omitted
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.
Link[s] omitted
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.
Link[s] omitted
Rex -v- Skinner (1772) Lofft 54; [1772] 98 ER 529
1772

Lord Mansfield CJ
Litigation Practice Casemap

Lord Mansfield said: "Neither party, witness, counsel jury or judge can be put to answer, orally or criminally, for words spoken in office." Where words are spoken which are opprobrious or irrelevant to the case, the court will take notice of them as contempt. If anything of mala mens is found on such an enquiry it may be punished.
Ballantine -v- Golding (1784) Cooke's Bankrupt Laws 419
1784

Lord Mansfield
Insolvency, Jurisdiction, Litigation Practice Casemap

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

Litigation Practice
Link[s] omitted
Jerrard -v- Saunders [1789] EngR 1305; (1789-1817) 1 Ves Jun Supp 290; (1789) 34 ER 794 (B)
1789

Litigation Practice
Link[s] omitted
Grey -v- Saunders [1790] EngR 755; (1732, 1756, 1790) Bar N 248; (1790) 94 ER 899 (B)
1790

Litigation Practice
[ 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
1 Citers
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.
Turner -v- Railton (1796) 2 Esp 474
1796

Lord Kenyon
Litigation Practice Casemap

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: "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."
Cazelet -v- Dubois; 05-Jul-1797
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

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