Parker v. Willard

1 Super. Ct. Jud. 326

Opinion

CASE. The Plaintiff declares that one Sam’l. Reed, Jr., on, &c.—made his promissory Note to Plaintiff, and therein for Value received promised the Plaintiff, &c. — and afterwards on, &c. —at, See.—the said Samuel Reed, Jun., engaged the Defendant to pay the Contents of said Note to Plaintiff for him and bring him said Note; and the Defendant paid said Contents, and thereupon the Plaintiff delivered him said Note to deliver to said Reed; which the Defendant did not do, but maliciously, &c. — on, &c. — at, See. — in the Name of one P. Pike, and without his Knowledge, did procure a certain Writ of Attachment against the laid Plaintiff, upon said Note, to be issued by J. Prescott, one of his Majesty’s Justices, &c.—to attach, &c. — (as in the Form of the Writ)—to answer said Pike in a Plea, &c.— in which Writ and Declaration it was falsely alledged that the Plaintiff had, on, &c. — endorsed the said Note to said Pike, which said Writ was afterwards, on, served, and the Defendant afterwards, on, &c. — did enter said Action commenced as aforesaid without the said Pike’s Knowledge, and thereupon the Plaintiff was put to great Expense, &c.

1771. aad entered whereby the Plaintiff was put to Expense without alleging what judgement was rendered, shows no Cause of Action. Sewall Sf Rogers, pro Quer. Exceptions in Abatement. J. Quincy, pro Defendente.

t. The Plaintiff hath not set forth what Judgment was rendered by the said Justice on the said pretended Action of the said Pike against the Plaintiff.

2d. By the Plaintiff’s own shewing, he could have suffered no Damage, but what would be considered in a regular Course of Law, by the said Justice.

3rd. By the Plaintiff’s own shewing it doth not appear that the Plaintiff had suffered any Damage by the Defendant’s supposed Conduct.

Footnotes

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(1)

“Judgment that the Writ, &c. abate. (2)

Incorrect. The exception being to the declaration, and not to the writ, the judgment entered was that of nil capiat per breve. See Steph. Pl. (ed. of 1824) 128.

“& defends & c., and prays Judgment of the Plaintiff’s said Writ & “ Declaration aforesaid. 1st. Because he faith that the said Parker hath “ not set forth what Judgment was rendered by the said Prescott, a Jut “ tice as aforesaid in the said pretended Action of Perley Pike against “ the said Samuel Parker, andly. Because by the Pit’s own shewing “ in his said Declaration he could have sustained no Damage but what “ must have been duly considered in the regular Course of Law by the “ said Justice in the Action aforesaid of the said Pike & Parker. 3rdly “ & lastly, because by the Pit’s own shewing, it doth not appear that “ he hath suffered any Damage by Reason of the Deft’s supposed Con- “ duct: all which the said Willard is ready to verifie, wherefore he prays “ Judgment of the Pit’s said Writ & Declaration, and that the same may “ be quashed, and for his Costs.

“ F. Quincy, Jun''

“ The foregoing Pleas in Abatement being argued by the Council for “ the Parties were overruled by the Court.

“ Tbad. Mason, Cler."

“ Saving which, if overruled & reserving Liberty of giving any new “ Plea on the Appeal, the said Aaron faith that he is an honest Man and “ thereof puts, &c.

“ J. Quincy, Jun.”

“ And the said Parker, consenting as above, says the Plea aforesaid is “ insufficient, & prays Judgment for his Damage & Costs.

“ Jon. Se’wall.”

“ And the said Willard sfays his said Plea is sufficient, & prays Judg- “ ment thereof & for his Costs.

“ N Quincy, Jun."