« ForrigeFortsett »
versus Jos NSON,
"Mc Michael against Johnson.--220 Noyember. Pleading. In declaring against one defendant upon e contruct jointly milk Outlawry.
another defendant who is outlawed, it is not necessary to ater the Reclaration.
outlawry with a prout patet per recordum, if it appear to be in
the same suil. Q. Whether it is necessary if the outlawry be by another and extrin,
- sic record ? M.MICHAEL THE plaintiff declared in assumpsit on a bill of ex
7 change as follows :-Middleser, to wit, Robert Johnson, late of Byker, in the county of Northumberland, Esq. J.L. late of, &c.; T.L. late of, &c.; and T. T. late' of, &c. engineer ; 'were attached to answer the plaintif* in a plea of trespass on the case. And where. upon the said plaintif" by Henry Muddock his attorney, complains, for that whereas the said Robert J., T. L. T.T., and one Henry Grey Macnab, late of, &c. doctor of physic, which said Henry Grey Macnab, by due course of law has been outlawed, at the suit of the said Daniel in this plea and suit, and still remains su outlawed, &c. · To this declaration, the defendants demurred specially, and shewed for cause, “ that it is not alleged, stated, or shewn in and by the said declaration, that there is any record of the said outlawry therein mentioned, nor bath the said plaintiff in or by his said declaration offered to verify or prove his said allegation by the same record, nor hath the said plaintiff alleged the time when the said H. G. Macnab was so outlawed as in the said declaration is mentioned, or that he was so outlawed in the court of our said lord the king bimself, &c.
Taunton, in support of the demurrer, cited Guy v. Goddard, * where a general averment, quod talis est
* Siderfin, 123.
judgment of ad upon a special act, and inferret
átlagátus, was held good, after verdict, and inferred 1805. that it would be bad upon a special demurrer, as here. The judgment of outlawry, he said, was a material fact M opon which issue might be taken, and therefore it Johnson. ought to have been averred upon record, in order to enable the defendants to take the proper issue, by pleading nul tiel record of the judgment of outlawry. In Symonds v. Parminter,* it should seem, that the outlawry was set out at full, as it ought to have been here, otherwise the incongruity of the time of the outlawry, being of a term subsequent to the declaration, could not have appeared upon the record. He cited also Whiteman v. Mullins,t to shew the necessity of averring a material fact, though it be but collateral, by record, where it must, if it exisls at all, exist by record.
Lord ELLENBOROUGH, C. J. “ The only point in Symonds v. Parminter is the inconsistency of the record : it is wholly silent upon the necessity of averring. the outlawry to be of record. It is every day's practice to state it as it is in this case; and you have no authority to shew that a prout patet per recordum is necessary. If it had been a fact appearing only upon an extrinsic record in another suit, and the practice had not run uniformly in favour of the plaintiff, there might be more in the argument to shew that it is necessary. Here it is averred that he was outlawed in the plea aforesaid ;' in the very record now before the court. There is therefore no uncertainty. And it is not like an averment by another record, which might create some uncertainty."
LAWRENCE, J. “I did not conceive that this ob. jection was intended to have been relied upon. In
1805 my own expen
my own experience I never kvew an outlawry to have M.MICHAEL
been alleged with a prout patet. I have asked my ', versus learned brothers, who have all had great experience JOHNSON.
in pleading, and they have beard of no such thing: For the purpose of this case, I examined the older entries, and I find this forin is pursued in Brownlow Redivivus; in Lilly, 30; in i Brow'n, 17; and also in Lufwyche, 39.
JUDGMENT FOR THE PLAINTIFF.
Hitchen against BARTSCH.--22d Nor.
Bankrupt. To an action on a promissory note given to an uncertificated banks Assignment by rupt after the commission issued, the defendant pleaded the bankConuissioners.
Personal pro- ruptcy of the plaintiff, and the commissioners' assignment: and that perty. Subse
the assignees demanded payment of him; the plaintiff replied, that
the assimmees demand quent earnings
of Bankrupt. there had been no new assignment to the assignees, after the making Stat. 13 Eliz.
of the note, and that the defendant treated with the pla:atif as c. 7, s. 11.
one capable of contracting personally. Held, on demurrer, that 'the demand by the assignees tested the right in them, that a new assignment of personal properly was nol necessury, and that the mode of contracting was immaterial.
THE plaintiff declared against the defendant upon a I promissorý note dated the 15th of August, 1801, payable to the plaintif at 8 months after date for 301. sterling, with interest, and also upon a promissory note of the same date, at 6 months, for 90l. and alşo upon the common counts for goods sold, money lent, &c.
The defendant pleaded, first the general issue; and secondly, that before the making the said several promises and undertakings in the said declaration mentioned, and before the several causes of action therein specified, had accrued to the said William IIitchen (to wit,)
on the 5th day of June in the year of our Lord 1801,
. 1805. to wit, at London aforesaid, in the parishand ward
ITITCHEN aforesaid, the said William Hitcheri then and there being a corn-dealer, dealer and chapman, and seeking
BARTSCH his trade of living by buying and selling, and being also indebted to William Sprout in the sum of 1001. and upwards, became and was a bankrupt, within the intent and meaning of the several statutes made and now in force concerning bankrupts, some or one of them; and that, thereupon afterwards, to wit, on the 5th day of June, in the year of our Lord 1801, aforesaid, at Lon'don aforesaid, in ward aforesaid, a certain commission under the great seal of Great Britain, bearing date at Westminster in the county of Middleser, the day and year last aforesaid, afterwards grounded upon the same several slatutes, some or one of them, was duly awarded and issued forth upon the petition of the said Wila liam Sprout, directed to certain cominissioners, that is to say, to William Wicksted, and John Hull, Esquires. Charles Bate, Thomas Niron, and William Lowe, gentleinen, thereby giving full power and authority to then the said commissioners, four or three of them to execute the same, as in and by the said commission, relation being thereunto had, will more fully appear; by virtue of which said commission, and by force of the said several slatutes concerning bankrupts, the said William Hitchen was afterwards and before the making of the said several promises and undertakings of the said Ernest George in the declaration mentioned, to vil, on the 8th day of June 1801, aforesaid, to wit, at London, &c. duly adjudged to be a bankrupt, and the said Ernest George further says, that afterwards and before the making of the promises and undertak. ing of the said Ernest George in the said declaration mentioned, to wit, on the sth day of July in the year of our Lord 1801, aforesaid, to wit, at London afore. said, in the parish and ward aforesaid, by a certain
indenfure then and there made and signed by three of the said commissioners, sealed with their respective seals, bearing date the day and year last aforesaid, and now in the custody or power of the said William Sprout and one Samuel Davies, but which is not nor hath at any time been in the custody or power of the said Ernest George, all and singular the goods, chattels, wares, and merchandize, effects and debts, sum and sums of money, and all other personal estate whatsoever, whereof the said William Hitchen was possessed, interested in, or entitled unto at the time he becaine a bankrupt, or at any time since; and all the estate, right, title, interest, equity of redemption, property, claim, and demand whatsoever of him the said William Hitchen, of, in, or to the premises or any part thereof, were in due manner bargained, sold, assigned, and set over to the said William Sprout and Samuel Davies, in trust for the benefit of the creditors of the said William Hitchen, as in the said indenture is expressed, and the said Ernest George in fact says, that the said several promises and undertakings, and also the said several causes of action in the said declaration mentioned, were first made and first accrued to the said William Hitchen, after the time when he the said William Hitchen was so as aforesaid adjudged to be a bankrupt, to wit, on the said 15th day of August, in the year of our Lord 1801, aforesaid, to wit, at London in the parish and ward aforesaid; and that he the said William Hit. chen had not on that day, and year last aforesaid, nor has he at any time since obtained a certificate from the said commissioners or four or three of them in the said commission named ; of the said William Hitchen hav. ing in all things conformed to the direction of the several statutes made and then in force concerning bankrupts : and the said Ernest George further in fact says, that after the making of the said several promises and undertakings in the said declaration mentioned,