Jasper Rogers v Caroline Dejoncourt and Two Others

• Jurisdiction: Ireland
• Judgment Date: 24 January 1845
• Date: 24 January 1845
• Court: Queen's Bench Division (Ireland)

Queenƒ€™s Bench.

JASPER ROGERS

and

CAROLINE DEJONCOURT and two others.

Robinson v. RaleyENR 1 Burr. 316.

Six Carpentersƒ€™ caseUNK 8 Rep. 147.

Always v. BroomeENR 2 Lutw. 1262.

Thorpe v. Stallwood 6 Sc. N. C. 715.

Foster v. BatesENR 12 M. & W. 226.

AnonymousENR 1 Anderson, 31.

Cotsworth v. BettisonENR 1 Salk. 247.

Doe d. Patten v. Patten Al. & N. 493.

Keane v. Dee Al. & N. 496.

Prescot v. BoucherENR 3 B. & Ad. 849.

Barefoot v. BarefootENR Palm. 411.

Whitehall v. SquireENR 1 Salk. 295.

Doe d. Hornby v. Glenn 1 A. & E. 49.

Lyons v. Mulderry Hayes, 534.

Woolley v. ClarkeENR 5 B. & Al. 745.

Murray v. East India CompanyENR 5 B. & Al. 204.

Pratt v. SwaineENR 8 B. & C. 285.

Winterbourne v. MorganENR 11 East, 394.

Dwyer v. Peacock 2 Fox & S. 34.

Pitt v. ShewENR 4 B. & Ald. 208.

Firth v. PurvisENR 5 T. R. 432.

Hull PickersgillENR 2 C. & J. 418.

Ring v. Roxborough 3 B. M. 620

Whitehead v. Taylor 2 P. & D. 367.

Vaughan v. BrowneENR Andr. 328.

Foster v. BatesENR 12 M. & W. 233

Pratt v. SwaineENR 8 B. & C. 287.

Massy v. Demberry See on this case 9 Vin. 133.

Thorpe v. StallwoodUNK 6 Sc. N. R. 715.

Curtis v. VernonUNK 3 Term Rep. 59.

482 CASES AT LAW. JASPER ROGERS 0. CAROLINE DEJONCOURT and two others.* (Queen's Bench.) REPLEVIN.-The declaration averred the taking to have been on the 14th of February 1844. There were two avowries and cognizances ; the avowries by the defendant Caroline, as administratrix with the will annexed of Stephen Dejoncourt deceased, and the cognizances by the other defendants as her bailiffs. The first avowry and cognizance avow and acknowledge the taking, &c., "because the plaintiff for three years previous to the 29th of September " 1843, and from thence until the death of Stephen Dejoncourt, held "the locus in quo as tenant to the said Stephen, under a demise for a "term still subsisting, at the yearly rent of 55. 10s., payable half "yearly ; and because in the lifetime of the said Stephen, on the 19th of " April 1842, one and-a-half year's rent continued due, the said Stephen "on that day took one parcel of the goods in the declaration menÂÂ" tioned ; and because the said one and one-half year's rent continued " unpaid until and on the day of the death of the said Stephen, he 44 thence continually until and on the day of his death detained that "parcel of the goods with the assent and at the request of the plaintiff as "a distress ; and because in the lifetime of the said Stephen another half " year's rent, on the 15th of November 1842, was unpaid to the said "Stephen, he on that day took another parcel of the said goods; and " because the last-mentioned rent continued unpaid until and on the death " of the said Stephen, he thence continually until and on the day of his " death detained, with the assent and at the request of the plaintiff, the "last-mentioned parcel of goods as a distress," &c. It then set out two subsequent distresses of the remainder of the goods by Stephen in his lifetime, for subsequent arrears ; and similar detainers by him until his death. It then stated that "the said Stephen died on the 12th of February " 1844, having made his will ; and that after his death, to wit, on that day and year, administration with the will annexed was granted to the "defendant Caroline ; and because the said several sums continued " unpaid, until and on the day of the death of the said Stephen, to him, " and at the time when, &c., continued unpaid to the said Caroline as "administratrix, administratrix, and because the plaintiff continued in possession of the • Coram CRAMPTON, J., and Psnam, J. CASES AT LAW. 483 ic locus in quo from the day of the death of Stephen until the time H. T.1845. "when, &c., she as administratrix, and the other defendants as her Quee"'s-riene,h• "bailiffs, continually from the day of the death of the said Stephen, until ROGERS "and at the time when, &c., detained: the goods," &c,; and it concluded 17ZIONCOURT with profert of the letters of administration. The second avowry and cognizance was the common avowry by an administratrix for rent in arrear, stating the death of the intestate and the taking to have been on the same day. There were several pleas put in• to these avowries. The fifth plea to the first avowry and cognizance traversed the detain.. ing of the goods by the said Stephen in his lifetime, with the assent and at the request of the plaintiff, modo et forma. The sixth plea to the first, and the fifth plea to the second avowry and cognizance, were the same ; they craved oyer of the letters of administra. tion, and setting them out with their dates, stated that the defendants took the goods on the 14th of February 1844, and that administration was not granted to the defendant Caroline until the 27th of February 1844; that the plaintiff had brought his action for the taking of the goods on the 14th of February 1844, and detaining them from that day, and averred that from the day of the death of the said Stephen, until the day on which administration was granted, the goods were not liable to be taken or detained by the defendant Caroline as administratrix. To each of these pleas the defendants demurred specially.-Joinder in. demurrer.-There were several other pleas, upon which issues, in fact, were joined. Mr. Francis A. Fitzgerald (with whom was Mr. Napier), in support' of the demurrers. As to the fifth plea to the first avowry, it is multifarious: the avowry: states three distinct detainers at distinct periods of time, and at distinct requests, and the plea attempts to put all in issue upon this traverse, Cumulative traverses are allowed only when the several facts put in issue are involved in one proposition, which is in effect the matter, traversed : Robinson v. Raley (a). The demurrer to the sixth plea to the first avowry, and fifth plea to the second avowry, raises two questions-first, whether an administrator may,• after administration granted, avow for the detention of goods under distress by his testator, in the interval between the death of the testator and the grant of administration ; secondly, whether an administrator may,, after administration granted, avow for a distress made by himself in the interval between the death of the...