Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas.: Or his collection of choice cases, and matters, agitated in all the courts at Westminster, in the latter yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq;

11.

SHuttelworth shewed how Robert Hughson brought an Action of Debt against B.* 1.1 as Administrator of F. and declared upon a simple contract made by the Intestate,* 1.2 and the Defendant pleaded plene ad∣ministravit, and it was found by Verdict against him. And now in arrest of Judgement the Defendant alleged, that the Action is not maintainable against him upon a simple contract. And Shuttelworth thought that now he is past that advantage, because he did not shew it in pelading, and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question.

Rodes

It appeareth to us judicially that no acti∣on will lie upon a simple contract against Executors or Admini∣strators, wherefore then ought the Plaintif to have Judgement?

Shuttelworth

Because by his Plea he took upon him notice of the contract, and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant, he was charged by a simple contract.

Rodes

Here he did not take notice, and in 15 Edw. 4. The Court ex officio, abated the Writ.

Shuttelworth

This is by Littleton onely.

Rodes

The case is ruled, and Littleton gave Judgement; so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper,* 1.3 if he be not named Hospitator, allthough he plead in bar, yet we ex officio ought to abate the VVrit.

Pery∣am

If he be no Hosteler, the Action lyeth not against him. And if an Action of Debt be brought, and doe not shew the place of the Obligation, if the other plead a release, this is good enough.

Shuttelworth

So is 18 Edw. 4.* 1.4

& 6 Hen. 7. Rodes

If a man bring an Action, and the Defendant plead in bar by Deed, and do not shew the Deed, and the other pleads in bar, and doth not except thereun∣to,

but they were at Issue, this is Error; for we ex officio ought to have adjudged it evill; and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case.

Then Shuttelworth sayd privily to his Client, I doubt we shall doe no good by our Action. (Anderson being then in the Star-chamber.) After at another day Anderson rehearsed the case, and sayd, it appeareth to us, that Executor or Administrator cannot be charged upon a simple contract, and the Court ex officio ought to stay the Judgement, and the VVrit at the first ought to have been abated, and this is reason, and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement ac∣cordingly.

Notes

• * 1.1

  Office of the Court.
• * 1.2

  Pasch. 30 El. rot. 421.
• * 1.3

  A common Ianholder.
• * 1.4

  A De••d not shewed in Court.