Cases in the Exchequer

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1829 edition. Excerpt: ...which was all that the plaintiff complained of under a warrant from the College of Physicians for mala praxis. The replication does not state any facts to shew, from the defendant's conduct, that they were not acting under the warrant, but merely says, that which they did, was done of their own wrong. This justification, as is said in the short report of the case in Salkeld, was merely denying the legality of the warrant; and if he was not taken under the warrant, but for some other cause, he should have pleaded that specially. This was a traverse of matter of law; namely, the legality of the warrant, and not, as in the present case, an allegation that the writ was not used, and would not authorize the manner in which (a) 12 Mod. 386; 3 Salk. 354; 1 Lord Raym. 454. Lucas v. NOCKELLB. Etch. Chamber, the property was disposed of by the plaintiffs. Lord Chief Justice Holt says, " If the plaintiff was arrested for any other cause, and not on this warrant, then the plaintiff should have shewn the other cause." The defendant, in the present case has shewn that the goods were taken for another cause, and he has satisfactorily proved, at the trial, that they were taken for another cause, and not under the writ. If, according to the strict rules of pleading, he ought to have stated the particular cause for which they were taken, it is too late to take advantage of that formal defect in the replication. The cases on which the counsel for the plaintiff in error relies, are distinguishable from that which we are now called on to decide. This was an attempt to abuse the process of the Court, by suing it out for the purpose of defeating the defendant's right to freight. We affirm the judgment of the Court below. Judgment affirmed....