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Plrartin:;. In declaring against one defendant upon a contract jointly itith ^cvlwaiiuii mother defendant yeho is outlawed, it is not necessary to aver the outlawry with a prout patet per recordum, if it appear lobe in the same sail.
Q. fVhether it is necessary if' the outlawry >e by another and extrinsic record?
>i'mich»el 'J* HE plaintiff declared in assumpsit on a bill of exJ»"n»o-i. change as follows -.—Middlesex, to wit, Robert Johnson, late of Byktr, in the county of Northumberland, Esq. J.L. late of, &c.; T.L. late of, Sec.; and 2» T. late of, &c. engineer; were attached to answer the plaintiff in a pleci of trespass on the case. And whereupon the said plaintiff by Henri/ Maddock 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 so 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 hath the said plaintiff \n or by his said declaration offered to verify or prove his said allegation bj 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 himself,
Taunton, in support of the demurrer, cited Guy v. Gaddard,* where a general averment, quod talit est
* Sideijln, 123.
mtlagatns, 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 ~,"iIt upon which issue might be taken, and therefore it J»hn»oh. ought to have been averred upon record, in order to enable the defendants to take the proper issue, by pleading nul tiel record of thejudgment of outlawry. In Symondsv. 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,\ to shew the necessity of averring a material fact, though it be but collateral, by record, where it must, if it exists at all, exist byrecord.
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 iheplaintiff, thereiuight be more in the argument to shew that it is necessary. Here it is averred that he was outlawed ' in the plesj 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 lome uncertainty."
Lawrence, J. "I did not conceive that this objection was intended to have been relied upon. In
iSOS my own experience I never knew an outlawry to have M'MicHAtL alleged with a prout patet. I have asked iny
j 'er'V. learnecl brothers, who have all had great experience in pleading, and they hav.e heard of no such tiling. For the purpose of this case, J exauiined the older entries, and I find this forin is pursued in Brownlotp Eedivivus; in Lilly, in 1 Brown, 17; and also in Lulayche, ay.
Judgment For The Plaintiff
Hitciien against Bartsch.—22d Nov.
Ta an action on a promissory note given to an uncertificated bankrupt after the commission issued, the defendant pleaded the bankruptcy of the plaintiff, and the commisuioncrs: assignment: and that the assignees demanded payment of him; the plaintiff replied, thaf there had been no new assignment to the assignees, after the making of the note, and that the defendant treated with the plaintiff as one capable of contracting personally. Held, on demurrer, that the demand by the assignees vested the right in them, that a new assignment of peisonal properly was not necessary, and that the mode of contracting was immaterial.
^HEplaintiJf declared against the defendant upon a. * promissory note dated the 15lh of Jngust, IftOl, payable to the plaintiff' at 8 months after date for, SQl. sterling, with interest, and also upon a prpmissory note of the same date, at 0 months, for SQl. and al^o upon the common counts fpr 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 Hitchcn (to wit,) Oh the 5th day of June in the year of our Lord 1801, # 1805< to wit, at London aforesaid, in the parish arid ward aforesaid, the said William Hitchen then and there being a corn-dealer, dealer' and chapman, and seeking 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 novf in force concerning bankrupts, some or one of them i and that, thereupon afterwards, to wit, on the 5th day of June, in the year of our Lord 1801, aforesaid, atLowdon aforesaid, in ward aforesaid, a certain Commission: under the great seal of Great Britain, bearing date at Westminster in the county of Middlesex, the day and year last aforesaid, afterwards grounded upon the same several statutes, some or one of thein, was duly awarded and issued forth upon the petition of the said William Sprout, directed to certain commissioners, that \i to say, to William Wickstcd, and John Hull, Esquires. Charles Bate, Thomas Nixon, and William Lowe, gentlemen, thereby giving full power and authority to them 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 statutes 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 wit, on the 8th day of June 1801, aforesaid, to wit, at London, Scc._ duly adjudged to be a bankrupt', and the said Ernest George further says, that afterwards and before the making of the promises and1 undertaking of the said Ernest George in the said declaration, mentioned, to wit, on the 8th day of* July in the year of our Lord 1801, aforesaid, to wit, at London aforesaid, in the parish and ward aforesaid, by a certain
indenture then and there made aad 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 Davits, 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 Hitchtn was possessed, interested in, or entitled unto at the time he became 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 Hilchen, 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 Hitchtn, 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 Hilchen, after the time when he the said William Hit* chen was so as aforesaid adjudged to be a bankrupt, to wit, on the said loth clay of August, in the year of our Lord J 801, aforesaid, to wit, &X. London in the parish and ward aforesaid; and that he the said William Hit* then 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 j of the said IFilliam Hitchtn having 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,