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SUM

1797- have been received, it is not each sum, but all taken together,

that constitute the breach, which must therefore be fo ftated.

All the sums so received, are, according to the condition to be Parrington, duly delivered. Here then the plaintiff states, that R. Spratlin

has received divers sums of money, and has not given, rendered, and paid, 8c. in the words of the condition. This allegation is indeed general, but from the nature of the fact it could not be otherwise. It was not contended in argument that extreme particularity was requisite, or that every sum need be stated; but it was said that the defcription of the receipt should have been shewn, that the money received by R. Spratlin must be divided into two classes, viz. money received from his employers and money received from the customers, and that it should have been thewn to which of these classes the fums received belonged. This, however, is but an imaginary division, for ftill the particulars would be unknown. The Defendant only experiences the same difficulty which occurs in all matters in pais which come before the Courts, especially on the general iffue. This difficulty is unavoidable, for in pais facts may be either fingle or accumulated. Though the books afford no express decisions on this subject, yet a series of similar replications are fufficient to eftablish the form of pleading. Had the form adopted in the cases cited been thought deficient by the profession, an exception to it would certainly have been taken. None having been taken, we may infer a concurrence of opinion sufficient to outweigh the authority of one vague cafe like that in Douglas, which points out no way of framing a replication, and which necessarily tends to load the record with a multitude of allegations. I am therefore of opinion, that this replication is agreeable to the rules of law and precedents. It is a rule that ifsue cannot be taken on 2 plea of general performance, because such a plea goes to a multitude of facts, one of which the Plaintiff muft select. But where a covenant relates to one fact only, iffue might be taken on the plea of performance without any objection, were it not for the general rule, which requires that to such a plea the Plaintiffs muft reply. The argument, therefore, which has been drawn from that rule, affords no objection to this replication when the plain

, tiffs have thewn one breach in the words of the condition. I think we ought to discourage demurrers of this kind.

Heath J. This demurrer refts solely on the cafe in Douglas, and the cases cited the other way prove that the rule there laid down is neither confiftent with the current of authorities previous

to that time, nor has since been universally acted upon. My brother 1797
Le Blanc admitted that it was not necessary to state each parti-
cular fum, but according to the case in Douglas such a ftate-

SIUM

FARRINGTON, ment would be necessary, for no rule can be laid down limiting the degree of particularity to be employed. The breach in subftance is, that R. Spratlin has not accounted for what he has received. These parties might have divided the condition of the bond into distinct parts, which would have compelled the Plaintiff to select his breach, and assign it separately. The method of averring Barratry is a strong instance of the conciseness allowed in pleading

ROOKE J. The authorities cited of a date previous to the case in Douglas, shew the practice before that decision to have been in favour of this replication. It is sufficient that the breach is afligned in the words of the condition.

The Court were about to give judgment (a) for the Plaintiffs, but on the application of Le Blanc, gave him leave to withdraw his demurrer and rejoin.

(a) A similar case of Barton and Another lar decision. 8 T. R. 459. approving the v. Welb and Anotber, executors, came on in above decision againit the case in Douglas. B. R. Hill, 40 Geo.3. and received a fimi.

TUE

Feb. Itth.
MURRAY 0. HUBBART.

7 East, 384.

2 New Rep. 188 THE Defendant in this case being arrested on a capias ad refpon- Defendant being dendum, issued against him by the name of Francis Hubbart, arrefted by the

name of F. H. put in bail by the name of Samuel Hubbart. Upon this the Plain- put ia bail by the tiff declared against him thus: “Samuel Hubbart arrefted by the name of .SH

then de“ name of Francis Hubbart was attached to answer George Murray clared thus: “ of a plea of trespass on the cafe” &c. and throughout the declara- a

« S.H. arrested

u by the name of tion called him Samuel. The Defendant pleaded as follows ; « É. H. was at" And the faid Samuel Hubbart against whom the faid original afwer,

“ tached to an“ writ of the said George hath been sued out by the name of Francis Defendant witlaHubbart in his proper person comes and pleads that he was pleaded in abate

. “ baptized by the name of Samuel Hubbart at Boston in the State ment of the writ “ of Massachussets in North America and by the name of Samuel S. H. ; Plaintiff Hubbart hath always hitherto since his baptism been called and having treated s known, to wit at London aforesaid in the parish and ward afore- lity, and fignca “ said; without this that the said Samuel now is or at the time of judgmentaccord

ingly, the Court 16 suing forth the said original writof the said George was or ever refuted to set it “ before had been, or ever since hath been called by the Chriftian aside. “ name of Francis, as by the said writ is above supposed. And

TT 3

« this

1797.

MURRAY

HUDBART. [*646)

“ this he the said Samuel is ready to verify. Wherefore he prays

*judgment of the said writ and that the same may be qualhed.” In fupport of this plea in abatement, there was the usual affidavit of the truth of its contents.

Early in this term an application was made to the Court on the part of the Plaintiff for leave to treat this plea as a nullity, and to sign judgment notwithstanding. But the Court refused to make any rule in that stage of the proceedings, faying that the Plaintiff might fign judgment if he thought proper, and leare it to the Defendant to move to set that judgment aside.

Accordingly judgment having been signed by the Plaintiff, and a rule nisi obtained by the Defendant to set it aside for irregularity;

Clayton Serjt. thewed cause and contended that the Defendant having appeared by the name of Samuel, the Plaintiff had a right to declare against him by that name. Hole v. Finch, 2 Wil. 393. and Doo v. Butcher, 3 Term Rep. 611. That this plea was a nullity, for there could be no plea to the writ without oyer; Com Dig. tit. Abatement (H. 1.), (a) that the Court would not now grant oyer of the writ; Boats v. Edwards (6), Doug. 228. and that if the plea were a nullity the Plaintiff might sign judgment. Wag faffe v. Long, Barnes, 263. ed. 3. He also cited Sir William Hick's case, i Vent. 154.

Heywood Serjt. contra insisted, that if the plea were bad it ought to have been demurred to: that there was no authority in the books in which oyer of the writ had been craved in order to

(a) So in Tbelcoll's Digeft, lib. 1o. cap. an original before the tender; upon which 2. f. 1. it is said “ borrme ne puit dire riens Defendant prayed oyer, which was denied ; al Briefe devant oier en del Briefe; pur que and it was said, that the Court never make demandons oier del Briefe," and Bracion rules for oyer of originals which are matlib: 5. cap. 16. is there cited.

ters of record.” It is to be remarked, (6) See alsó Reg. Gen. T. 19 Geo. 3. B.R. however, that the Defendant in that cafe, to the same effect, and Spalding v. Mure, by the regular course of pleading, inferd 6 Terin Rep. 364. where the Court said of praying oyer, thould have reja ined nad « formerly a variance between the writ and tiel records and that in two fubfequere declaration might have been taken advan- cases, viz. Vanderplank v. Banks, C. B. tage of by the Defendant's craving oyer of 2 Wilf

. 85. and Hole v. Fincb, 2 Wilf

. 293the writ; but the Court have laid down a the Court of Common Pleas held, that a rule that the Defendant shall not have oyer variance between the writ and count car of the writ for the purpose of setting aside not be taken advantage of without craving the proceedings.” According to the report oyer of the writ; but in neither of those in Douglas of Boats v. Edwards, a cale in cafes was it said, that if over had been the common pleas was much relied on, craved, it would have been refused, though which case, as appears from the note, was in the latter it was said, that in such a cafe Ford v. Burnham, Barnes 340. cad. 3. There the Master of the Rolls on application Defendant having pleaded a tender ante would order right originals to be made diem impetrat: brev : orig : Plaintiff replied out.

plead

1797.

MURRAY

HUBBART.

plead misnomer in abatement; and that this therefore was an experiment, for if the Plaintiff had demurred he could only have had a judgment of respondeas oufier. He urged that this was not a plea to the jurisdiction, but to the perfon, and that no plea to the person could be pleaded after oyer. Theloall's Dig. l. 14. C. 5. and that a precedent of such a plea pleaded without oyer was to be found in Afion's Entries (a), i pl. 2.

Cur. adv. vult. The judgment of the Court was this day delivered by

Eyre Ch. J. On looking into the record, it appears to us that the plea proceeds upon a mistake of the statement of the writ in the declaration: it fupposes the writ to have been fued out against the Defendant by the name of Francis, whereas the plea alleges that his name is Samuel. But the writ as recited at the head of the declaration is not against Francis, but against Samuel; it is that Samuel was attached to answer; Samuel arrested indeed by the name of Francis; the arrett, however, is not the operation of the writ, but of the mesne process, which is out of the question after appearance. Now, taking it that the writ is recited to be a writ against Samuel, the plea only affirms the writ : taking the plea to amount to a denial that the writ was against Samuel, and an averment that it was against Francis, it is clear, (without entering into the question of oyer, and the learning on that subject,) that the Defendant must offer in some manner to make out thecontents of the matter of record; this he has not done, mistaking, as we suppose, the import of the recital of the writ in the declaration. If it be faid that the writ ought not to have been so recited, it may be answered, first, that is not now the question; and secondly, there is no reason why it should not be so recited; for the objection to the mesne process being cured by appearance in the true name, the writ, whenever it is properly called for, will be found to be a writ against the party by his true name. In the case of Hole v. Finch, the parties being probably aware how easily the mistake in the mesne process would be rectified upon the record after appearance, applied to set aside the mesne process for irregularity. The application before appearance would in all probability have been granted. But the Court refused to do it after

appearance, and intimated that the mistake might be cured in the way which I have mentioned. The case, therefore, comes to this, that so long

(a) Vid. etiam Raftall's Entr. f). 107. was grounded on a misnomer in the writ,
Herne's Pleader, I. and 1 Wentwortl's Syft. the court seemed to think that øyer ihuuld
of Plead. 3. 38. 47. However, in Hole v. have been craved.
Finch, 2 Will. 293. where the objection
TT 4

as

MURRAY

1797 as it is the practice of the Court to issue the mesne process firft,

and to allow an original to be sued out afterwards, if necessary

to fubftantiate the proceedings, no advantage can be taken after HUBBAXT. appearance of a misnomer in the mefne process. If, indeed, the

Plaintiff carry the same mistake into the declaration, the plea of misnomer will ftill be open to the Defendant, for then both the writ and the declaration will appear upon the record to be against the Defendant by a different name from that which the plea states to be the name of baptifm, and so the plea will be an answer to the writ and declaration. Here, as I have observed, it says no more than the writ and declaration have faid; it is not an exception to, but an affirmation of the Plaintiff's proceedings as they appear upon the record. The plea, therefore, being bad and wholly unavailing, we think the judgment was properly signed; but as the case is involved in some perplexity, it may be right to let the party in to plead upon proper terms.

On a subsequent day, however, the rule was discharged with

out costs. Feb. 13th. 5 T.R. 491.494. 13 Eati, 513.

COLLINS v. Martin and Others. Espin. N. P.C. 66. 520. S. C.

This was an action of trover for two bills of exchange depo3 Bro. C.C. 31. THIS 2 Campb. N.P.5. sited with the Defendants under the following circumstances: 3 Campb. 303.

The bills were fent by the Plaintiffs to Mefirs. Nightingales, his If A. deposit bills indorled in blank bankers, indorsed in blank, in order to be received by them with B. his bank- when due, and to be carried to his account. In the bankers er, to be received when due, and book they were entered short: and the balance of account bethe latter raise tween the bankers and the Plaintiff was in favour of the latter. money upon them by pledging The Nightingales being in want of money depofited the bills in them with C.

question, among others, with the Defendants, who were also another banker, and afterwards

bankers; and gave them an acknowledgment in writing for a become bank

fum of money received upon this deposit. The Nightingales rupt; A. cannot maintain trover having failed, this action was brought to recover the bills. Eure against C. for the Ch. J. before whom the cause was tried at the Guildhall fittings bills.

after Michaelmas Term 1796, finding upon enquiry that there was no evidence to shew that the Defendants knew the circumstances under which the bills came into the hands of the Nightingales, or the situation of the account between them and the Plaintiff, directed a nonfuit. To set aside this nonfuit, a rule nis having been obtained upon a former day;

Le Blanc and Palmer Serjts. in the course of the Term fhewed cause. This case may be decided without breaking in upon the doctrine of pledges, or denying that bankers are in some respects

factors

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