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![handle is hein.slavery/ssactsengr0025 and id is 1 raw text is: BAWORTH V. SPRAGGS
HAWORTH against SPRAGGS. Friday, May 9th, 1800. The defendant, in a plea in
abatement of misnomer, must give his surname as well as his true Christian name,
although his true suiname be used in the declaration. [5 Taunt. 652.]
The defendant was sued in an action of assumpsit by the name of John Spraggs;
to which he pleaded in abatement as follows :- And he against whom the plaintiff
bath exhibited his bill by the name of John Spraggs, in his proper person, comes and
pleads that he was baptized by the name of James, to wit, at, &c. ; and by the
Christian name of James hath always, since his baptism, hitherto been called and
known, &c. ; traversing in the usual form, that he was ever known by the Christian
name of John. The plaintiff demurred ; and assigned for special causes that, by the
manner of pleading, the said James had, by his said plea, admitted himself to be the
person named the defendant in and by the aforesaid bill of the plaintiff; and also that
the said James had not begun his said plea in the words following: viz. And James
Spraggs against whom, &c. in the usual and known mode of pleading a plea of
misnomer in abatement, &c.
Manley, in support of the demurrer, referred to the cases of Hixon v. Binns(a),
and Roberts v. Moon (b), to shew that the Court held a strict hand over dilatory pleas,
and would not admit of a departure from the usual form of pleading in these cases.
In the latter case, a plea of abatement of misnomer, beginning And the said Richard,
sued by the name of Robert, &c. was holden bad, being an admission that he was
the person named defendant by the plaintiff's bill ; so here the word he is equivalent
to said in that case, and must have the same construction.
Reader, contrh, denied that it had ever been decided that such a plea must be
penned in any particular form of words. It was sufficient here that the defendant
shewed by his plea [516] that his Christian name had been mistaken by the plaintiff,
admitting himself to have been properly called by his surname; but
The Court said, that at any rate the plea was defective, in not setting out the
.surname as well as the Christian name of the defendant. That such a plea must
inform the plaintiff what is the true name of the defendant ; whereas here, the defen-
dant corrected the plaintiff's mistake as to his Christian name ; but neither admitted
that he was rightly designated by his surname, nor called himself by any other
surname.
Judgment, respondeat ouster.
ALPASS against WATKINS. Friday, May 9th, 1800. Under a limitation in a marriage
settlement to the husband for life, then to the wife for life, then to the heirs of
the body of the wife and their heirs, the wife took an estate tail ;-and though
it was recited in the deed that.the husband's father conveyed, in consideration of
the marriage, and for settling and establishing the lands, &c. to the uses there-
after expressed, and subsequent uses were added in the deed, this Court would
only take notice of the legal estate ;-and the husband and wife having levied a
fine, and having agreed to sell the estate to a purchaser, from whom they had
received part of the purchase-money, this Court would not permit the purchaser
to recover back the deposit money in an action for money had and received.
[I Mar. 258.]
This was an action for money had and received by the defendant to the use of the
plaintiff, brought to receive back 501. being the deposit money paid by the plaintiff
to the defendant, in part of 9251. the purchase money contracted for between them
of a messuage called Perry Grove, and certain lands situate in the parish of Newland,
in the county of Gloucester. On the trial at the sittings after last Hilary term, in
London, the following case was reserved for the opinion of this Court:-
The estate in question was put up to sale by auction on the 9th of June, 1797;
the plaintiff was declared the purchaser in fee thereof at 9251., and paid a deposit of
501. to the defendant on account of such purchase. The defendant's title to the
premisses sold is as follows :-John Watkins the Elder, father of the defendant, being
seised in fee of the said premisses, by indentures of lease and release, on the 3d and
4th of June 1754 (being a settlement made on the marriage of his son John Watkins,
8 T. R. 516.
1521
(a) Ante, 3 vol. 185.
(b) Ante, 5 vol. 487.](ViewImageLocal?handle=hein.slavery/ssactsengr0025&div=1&collection=&method=preview&ext=.png&size=3)