TRINITY TERM. 12 GEO. III. 1772. Mattravers verfus Foffet, and two others. C. B. REP road. Acres, fo took the road to PLEVIN for taking the plaintiff's cattle on the 8th Replevin, for of July 1771, at I. in the county of Middlefex, in a certain taking his place called the Road, otherwife Holloway Road, otherwife cattle in the lington Road, otherwife Highgate Road, otherwife the King's Avowry for Ighway. The defendant Foffet avows, and the others, as his dam. feafant fervants, make cognizance of the taking the cattle in the faid place in the Four in which, &c. and juftly, &c. becaufe they fay that one Jones them there was feifed in fee of a certain clofe called the Four Acres, in the and drove parish of I. in the county of Middlefex, and being fo feifed, he them along the faid Jones before the time when, &c. (to wit) on the 29th impound day of September 1770, demiféd the faid clofe called the Four them. deres, to the faid Foffet; to hold the fame to the faid Foffet from thenceforth, for-and during and unto the full end and term of one whole year from thence next enfuing, and fo from year to year fo long as the faid Jones and Foffet fhould please; Plea in bar by virtue of which demife, Foffet entered into the faid clofe called that the road the Four Acres, and became, and at the faid time when, &c. was is not parcel of the Four and fill is poffeffed 'thereof; and becaufe the faid cattle at the faid time when, &c. were in the faid clofe called the Four Acres, cating up the grafs and doing damage there; Foffet avows, and and joinder. the other defendants acknowledge the taking the cattle in the faid is well clofe called the Four Acres as a diftrefs for the faid damage, and enough, and driving the faid cattle in and along the faid place in the decla- the plea ill. ration, in order to impound them. Plaintiff protesting that the avowry and cognizance are infufficient, for plea fays, that the faid place called the Road, otherwife, &c. in which, &c. is not parcel of the faid clofe called the Four Acres in the avowry and cognizance mentioned, and this he is ready to verify, &c. Acres. Demurrer The avowry Objection to the flea in bar.. The defendants demur because they fay they cannot take a proper issue upon any fact in the plea in bar. Plaintiff joins in demurrer. Walker ferjeant for the defendants-The plea in bar is ill, for it neither confeffes and avoids, traverfes, or denies any fact alledged in the avowry and cognizance, but fays that the road in which, &c. is not any parcel of the clofe called the Four Acres, so that it only denies that which is not alledged by the defendants; alfo the conclufion of the plea with an averment after fuch a denial is abfurd. Serjeant Burland for the plaintiff-We never intended to rely upon the plea in bar, and admit that it is ill; but we fay that it appears upon this record that defendants have made the first fault in their avowry and cognizance, and it is a general rule in pleading for the court always to refort to the firft fault in pleading. The avowry and cognizance acknowledge the taking the cattle in the road, &c. and juftly, &c. because they fay that Jones was feised in fee of the close called the Four Actes, and demised Objection to the fame to the defendant Foffet to hold for a year, and fo from the avowry. year to year at will, and juftify the taking the cattle damage feafant in the Four Acres, and driving them in the road (the place in the declaration mentioned) in order to impound them; but the defendants do not aver that they were driving the cattle in the road from the clofe called the Four Acres because they were doing damage there; and for any thing that appears to the contrary, the defendants might be driving the cattle in the road from any other place than from the Four Acres; the defendants are called upon by the declaration to fay why they took the cattle in the road or highway. Gould Juftice-The defendants in the beginning of the avowry and cognizance have acknowledged they took the cattle in the road, the place in the declaration, and juftly, (as they fay); are they obliged to repeat that matter again in the latter end of the avowry and cognizance. I think they are not. Lord Chief Juftice-The general rule is, for the court to refort to the first fault in pleadings. Blackflone Juftice to ferjeant Walker-Your avowry and cognizance may be all true, and yet it does not appear thereby, from whence the defendants were driving the cattle. Adjourned for a few days for ferjeant Walker to reply. Serjeant plead over, you cannot Serjeant Walker in reply-If there be any defect in the avowry Where you and cognizance it is merely in matter of form and not fubflance, and where you plead over you cannot object to want of form. after object to 8 Rep. 120. 7 Rep. 25. Salk. 519. Hob. 232. Gould Juftice. If the avowry and cognizance be at all defective, I think it is in fubftance. See Plowd. 56. Adjourned for two days to confider. Lord Chief Juftice De Grey-The court, upon confideration, are of opinion that the avowry and cognizance are well enough pleaded, for by connecting the beginning with the latter end thereof it appears to be one entire tranfaction; in the beginning thereof the defendants fay they took the cattle juftly, &c. in the road (the place in the declaration), and in the latter end, they juftify the taking them in the Four Acres damage feafant, and driving them in the road to impound them; we think it appears clearly to be one intire tranfaction. The court being about to give judgment for the defendants, want of form. ter argument. Serjeant Burland moved for leave to amend the plea in bar, Leave given and traverse the taking in the Four Acres; which was oppofed to amend afby ferjeant Walker, because the plaintiff had pleaded over, the cafe had been argued, and the court given their opinion; befides, the plaintiff hath made the defendant Feffet's two fervants defendants in this action in order to take away their evidence. The plaintiff confenting to ftrike the two fervants out of the declaration, the court gave him leave to withdraw his demurrer, and amend his plea in bar upon payment of cofts. Fisher, Adminiftratrix verfus Lane and others. C. B. ACTION upon the cafe upon affumpfit brought by the plain 2 Black. Rep. 834. S. C. and delivered Action by an tiff as adminiftratrix of her late husband John Fisher, for adminiftratrix goods fold and delivered by him in his life-time to the defend-for goods fold ants, who paid 20l. gs. 6d. into court and pleaded the general by the intesiffue, whereupon iffue being joined, the caufe was tried before tate, on the Lord Chief Justice De Grey, at the fittings in London after Trinity general iflue term, 11 Geo. 3, when a verdict, by confent, was found for the defendants plaintiff with damages and cofts, fubject to the opinion of the gave in evicourt upon the report of the Lord Chief Juftice upon a motion for a new trial. pleaded, the dence the payment of a fum of money in confe quence of a judgment upon a foreign attachment in London, by producing a copy of the minutes of the procefs on the foreign attachment by the officer who executed that procefs. [In proceedings on fo reign attach inents, the must be fum of London'to give no no tice :) otherwife the judgment against the Garpithee will be erroneous, and the money paid or cution of it will not dif charge the Garnithee of his debt to his creditor ] In Michaelmas term laft Lord Chief Juftice De Grey made his report in court to the following effect, z. This is an action brought by the plaintiff as adminiftratrix of her late husband creditor of the John Fisher, for beer called porter fold and delivered by her faid Garnithee hufband to the defendants as merchants for exportation; at moned or have the trial no witneffes were called for the plaintiff, becaufe the notice: (tho defendants admitted that a fair and juít debt of 102l. 115. was it is alleged to due and owing to the inteftate for porter by him fold and delibe the custom vered to them in his life-time. The defendants gave in evidence a payment of a fum of money in confequence of a judgment. upon a foreign attachment in London, and for that purpofe called the proper officer (the ferjeant at mace) who executed the city procefs in the foreign attachment, who, being fworn, depofed that he had in his hand a true copy or minutes of the proceedings in the foreign attachment entered in the book kept for that purpose, whereby it appeared that one Henry Fanjon, on the 17th day of levied in exe- Alay in the 10th year of King Geo. 3. levied a plaint in the court of London against the now plaintiff Fisher (the adminiftratrix) the entry whereof is thus, viz. " Henry Fanfon demands againft B. Fisher 100l. which he unjustly detains, for that John Fisher the inteftate was in his life-time indebted to the faid Henry Fanfon, in debt 100l. damages 20s. fworn "to 92l. 185. pledges, &c." that he the officer afterwards, on the faid 17th day of May in the 10th year of Geo. 3. between the hours of three and four o'clock in the afternoon, attached gel. 185. the money of John Fisher the inteftate, in the hands of Lane and others the now defendants. That it appeared, by the faid entry in the faid book, whereof he had a true copy in his hand, that the now plaintiff Mrs. Fisher (the defendant in the city court) made four defaults in not appearing, that is to fay, the first default on the 18th day of May in the 10th year of Geo. 3.-The fecond default on the 19th day of May in the 10th year of Geo. 3.-The third default on the 26th day of May in the 10th year of Geo. 3.-And the fourth default on the 28th day of May in the 10th year of Geo. 3. which four defaults were recorded againft (the now plaintiff) Mrs. Fifker the then defendant in the chy court, whereupon, at the petition of Henry Fanfon (the plaintiff in the city court) it is commanded to the ferjeant at inace that he accordingly do warn the Garnishees (the now defendants) that they be here (i. e. in the city court) on Tuesday the 12th day of June in the 10th year of Geo. 3. to fhew caufe why the faid Henry Janfon ought not to have judgment for the faid 927. 18s. fo attached in the hands of the Garnifhees (the now defendants). That he (the ferjeant at mare) certified he had warned the Garnifhees to appear in the faid city court on the faid 12th day of June in the 10th year of Geo. 3. to fhew caufe, Bc. whereupon, on the petition of the plaintiff below (Fanon) the the Garnifhees are demanded, and do not appear but make default; therefore it is confidered that the plaintiff (below) Fanfon have execution of the money if the defendant, &c. and procefs for the remainder, &c. and the plaintiff (below) anfon came in perfon and found pledges to reftore, &c. if the defendants, &c. (to wit) William Backhoufe and Langford Smart citizens, and thereupon a precept was granted for the plaintiff Fanfon, to have execution, which he had and thereupon acknowledged himfelf fatisfied.-The ferjeant at mace further depofed, that no notice was given to Mr. Fifher (the defendant in London), and that this was the custom of the city court; and that he had known many fuch foreign attachments in cafes of adminiftrators like the prefent cafe. He faid he remembered one inftance of drawing up the record of the proceedings in a foreign attachment at full length, which was given in evidence at the affizes for Suffolk in the year 1755, and in that cafe he read the whole entry of the record at length, this is the whole of the evidence that was given in court at the trial. ment. Serjeant Jephfon for the plaintiff-The general question in this Michaelmas cafe is, whether the evidence given by the defendants at the trial, term 12 Geo. be a good and fufficient defence to this action which is brought 3, first arguby an adminiftratrix for goods fold and delivered by the inteftate to the defendants; the defendants' whole evidence was no more than the copy of minutes entered in a book of the proceedings to judgment in the city court on a foreign attachment, as (before) reported to the court by my Lord Chief Juftice, whereby it does not appear that the plaintiff Mrs. Fifher had any notice of the proceedings on the foreign attachment, or that the was ever fummoned to appear in the city court to answer to thre plaint levied against her there by Fanfon, or that fhe had any notice thereof from the Garnifhees (the now defendants) Lane and others. From this general queftion, two particular points arise. 1st, Whether in the cafe of an adminiftrator a debt due to the inteftate can be attached by foreign attachment by the custom of London, or whether there is any fuch custom in fact ? 2dly, If there be fuch cuftom, whether that cuftom is good in point of law, or whether the Garnishees can avail themselves thereof without notice given to the adminiftrator to appear? As to the ft point, it feems to be a matter of great confequence; the debt due to F'anfon is a fimple contract debt, and if this cuftom be allowed in the cafe of an adminiftrator, a fimple contract creditor may be preferred to a creditor in a higher degree, |