1840. BRUCE บ. WAIT. Affidavit of one plaintiff for 5501. tachment awarded. lawful money of Great Britain, and the said W. K. Wait made oath, by affidavit in writing, to 550l. and upwards of like lawful money, and, in the same court, found pledges to prosecute their said plaint, (to wit) John Doe and Richard Roe, and thereupon the said W. K. Wait and S. James put in their place Meshach Brittan, their attorney, against the said J. Coombe in the plea aforesaid; and in the same court there, by their said attorney, sought process of foreign (a) attachment of Process of the same court, to be made thereupon against the said foreign atJ. Coombe, according to the custom of the city aforesaid, prayed. from the time aforesaid used and approved in the same: whereupon, at the request of the said W. K. Wait and S. James, made by their said attorney, according to the custom of the city aforesaid, it was commanded by the Process same court here to all officers of the said court of the Tolzey, and also all constables whatsoever, that they should attach the said J. Coombe by his goods and chattels, so that he should be at the next court after the attachment in the Guildhall aforesaid, to answer to the said W. K. Wait and S. James in the plea aforesaid; and afterwards, to wit, at the court of our said Lord the King of the Tolzey of the city aforesaid, here in the Guildhall of the city aforesaid, according to the custom of the city aforesaid, on the 14th day of February in the year aforesaid, Richard Pointing, one of the officers and minister of the said court of the Tolzey, returned and certified to the said court, upon the precept last mentioned, that he, by virtue of that writ to him in form aforesaid directed, had attached the said J. Coombe by Attachment 3388 bushels of oats, being the proper goods and chat- returned. tels of the said J. Coombe, to answer the said W. K. Wait and S. James of their aforesaid plea of plaint, according to the custom aforesaid, and that he had the same in his custody; and afterwards at the court of our (a) As the goods are not hands, this term seems to be alleged to have been in third improper. 1840. BRUCE บ. WAIT. said Lord the King of the Tolzey, holden, according to the custom of the city aforesaid, here in the Guildhall aforesaid, on Friday, the 17th day of February in the year aforesaid, came Robert Bruce the younger, and put in his place Brooke Smith, his attorney, and in the same Claim of pro- court there by his said attorney claimed the property of perty. all the goods and chattels aforesaid and every part thereof, and alleged that the property of the same at the time of the attachment made was and on the said 17th day of February in the year aforesaid still was in him the said R. Bruce, and not in the said J. Coombe, as by the attachment aforesaid is above supposed. And that this he was ready to verify; wherefore the said R. Bruce then prayed judgment, and a return of the said goods and chattels aforesaid to be adjudged to him, and so forth. And afterwards, at the court of our said Lord the King of the Tolzey of the city aforesaid, holden here in the Guildhall aforesaid, according to the custom of the city aforesaid, on Friday, the 24th day of February in the year aforesaid, and after eight clear days, including therein four court days, had elapsed after the said 14th day of February in the year aforesaid, according to the custom and practice of the said court, the said W. K. Wait and S. James, by their said attorney, in the same court, declaring upon the plaint aforesaid in the plea aforesaid against the said J. Coombe, according to the custom of the city aforesaid, say, That whereas the said J. Coombe, on the 2d day of January then last past, here, at the city of Bristol, in the ward of All Saints, there, within the jurisdiction of this court, granted to Concessit sol- pay (a) to them, the said W. K. Wait and S. James, Declaration against defendant. vere. Concessit solvere in Tower of London. (a) The nature of this proceeding will appear by the following record of an action upon a concessit solvere commenced before the Constable and Lieutenant of the Tower of London in 1486, and removed into the Court of Common Pleas (antè, Mittimus 11007., of, &c. for divers sums of money from the said. John to the said W. K. and S. before that time there. 1840. BRUCE V. in these words: - Henry, &c. to His beloved and faithful R. R., knight, and his companions and justices of the Bench, greeting: We send you inclosed in these presents the record and process of a certain plea, which was before the Constable of Our Tower of London and his Lieutenant there, between F. M. and R. C., of debt of 201. which the said F. demands from the said R. C., as it is said, which We caused to come before Us in Our Chancery, commanding, that having inspected the record and process aforesaid, you further cause to be done on the prosecution of the said F. as of right, and according to the law and custom of Our kingdom of England, ought to be done. Witness MyTower record self, &c."-The record and process of the plea, whereof mention is made in the said writ, follows in these words: -"Tower of London, Court of the Lord the King, held there before R. C., knight, Lieutenant of J., Earl of O., Constable of the said Tower, according to the custom of the said Tower, used from time whereof memory is not extant, on the 18th day of November, in the 1st year of the reign of King Henry VII., F. M. complains against R. C. of a plea of debt upon demand of 201., and finds pledges of prosecuting that plaint, to wit, J. S. and R. C.; wherefore, upon the petition of the said F., according to the custom of the Tower aforesaid, used in the sent. WAIT. same, from time whereof the memory of man is not extant, it is commanded to J. W., sub-auditor of the Tower aforesaid, that he take the said R. by his body, if, &c., so that he may have his body here without delay, to answer the said F. of the plea aforesaid, &c., afterwards, to wit, at the same court, held on the 16th day of May here, to wit, at the Tower aforesaid, before the said R., Lieutenant, &c., according to the custom aforesaid, come as well the said F. in her own person as the said R. taken by J. P. by pretext of the precept aforesaid in his own person; and hereupon the said F. complains Declaration. against the said R., for that the said R. unjustly detains from and does not render to the said F. 201. which he owes her and unjustly detains : For that whereas divers variances, suits, and discords, were for a long time moved and pending between the said F. of the one part, and the said R. on the other part, for divers trespasses and offences to the said F., by the said R. perpetrated, for Accord. which the said F. had sought of the said R. sufficient amends to be made to her; the said R., not ignorant of the premises, willing to satisfy the said F. for those trespasses, on the 12th day of A., in the year, &c., at Concessit solthe Tower Wharf, within the ju- vere. risdiction of this court, granted to pay to the said F. the said 201., in satisfaction of the trespasses aforesaid, to be paid to due and then being unpaid, to be paid to the said W. K. the said F. when he should be in the jurisdiction of the same The record, after stating an P. 22 H. 7. Rot. 396., Rast. Ent. 550 b. (a) Wait had made affidavit for 1840. BRUCE v. WAIT. court that he, the said attorney, was informed by the said W. K. Wait and S. James, that the said John Coombe then owed to the said W. K. Wait and S. James the sum of 6007. of lawful money of Great Britain, and the said W. K. Wait and S. James here in court, according to the custom of the city aforesaid, found pledges, (to wit) Pledges to David Morgan and Henry Jew, yeomen, both of the city restore. aforesaid, and citizens of the said city, to restore to the said John Coombe the said goods and chattels according to the custom of the city aforesaid, if he the said J. Coombe, within a year and a day then next following, came and himself falsified and disproved the debt aforesaid; and afterwards, at the same court of our said Lord the King, of the Tolzey of the city aforesaid, holden here in the Guildhall aforesaid, according to the custom of the said city, the said Monday the 10th day of April in the year aforesaid, came as well the said R. Bruce, by his said attorney, as the said W. K. Wait and S. James, by their said attorney, and the said W. K. Wait and S. James, according to the custom of the city aforesaid, by their attorney aforesaid, say that by reason of any thing alleged in the plea of property of by the defendant. Although the plaintiff was not sworn in person, but by attorney, the justification was held to be sufficient." Mes nota que le dit plaintiff in person ne fuit jure, eins son attorney pur luy, qui est son oath per atturney." Lucas v. Cotton, 1 Anderson, 12, pl. 27; S. C. Sir F. Moore, 79, pl. 210., and shortly reported, Benlowes, 40, pl. 163. But it has been held, that where the custom is to swear the debt, it is not sufficient to allege that the plaintiff swore his debt to be true, by himself, or by his attorney; for his attorney can not swear it to be a true debt. |