1797. SHUM have been received, it is not each fum, but all taken together, that conftitute the breach, which muft therefore be fo ftated. All the fums fo received, are, according to the condition to be PARRINGTON. duly delivered. Here then the plaintiff ftates, that R. Spratlin has received divers fums of money, and has not given, rendered, and paid, &c. in the words of the condition. This allegation is indeed general, but from the nature of the fact it could not be otherwife. It was not contended in argument that extreme particularity was requifite, or that every fum need be ftated; but it was faid that the defcription of the receipt fhould have been fhewn, that the money received by R. Spratlin must be divided into two claffes, viz. money received from his employers and money received from the cuftomers, and that it should have been fhewn to which of these claffes the fums received belonged. This, however, is but an imaginary divifion, for ftill the particulars would be unknown. The Defendant only experiences the fame 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 exprefs decifions on this fubject, yet a series of fimilar replications are fufficient to eftablish the form of pleading. Had the form adopted in the cafes cited been thought deficient by the profeffion, an exception to it would certainly have been taken. None having been taken, we may infer a concurrence of opinion fufficient to outweigh the authority of one vague cafe like that in Douglas, which points out no way of framing a replication, and which neceffarily 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 iffue cannot be taken on a plea of general performance, because fuch a plea goes to a multitude of facts, one of which the Plaintiff muft felect. 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 fuch 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 fhewn one breach in the words of the condition. I think we ought to difcourage demurrers of this kind. HEATH J. This demurrer refts folely on the cafe in Douglas, and the cafes 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 fince been univerfally acted upon. My brother Le Blanc admitted that it was not neceffary to ftate each particular fum, but according to the cafe in Douglas such a statement would be neceffary, for no rule can be laid down limiting the degree of particularity to be employed. The breach in fubftance is, that R. Spratlin has not accounted for what he has received. These parties might have divided the condition of the bond into diftinct parts, which would have compelled the Plaintiff to felect his breach, and affign it feparately. The method of averring Barratry is a strong inftance of the conciseness allowed in pleading. ROOKE J. The authorities cited of a date previous to the cafe in Douglas, fhew the practice before that decifion to have been in favour of this replication. It is fufficient that the breach is affigned 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 fimilar case of Barton and Another v. Welb and Another, executors, came on in B. R. Hill, 40 Geo.3. and received a fimi lar decifion. 8 T. R. 459. approving the 1797. SIUM FARRINGTON, THE MURRAY V. HUBBART. Feb. 11th. 7 Eaft, 384. name of F. H. Plaintiff then de "S.H. arrefted « fwer, ." HE Defendant in this cafe being arrefted on a capias ad refpondendum, iffued against him by the name of Francis Hubbart, put in bail by the name of Samuel Hubbart. Upon this the Plaintiff declared against him thus: "Samuel Hubbart arrefted by the "name of Francis Hubbart was attached to answer George Murray "of a plea of trefpafs on the cafe" &c. and throughout the declaration called him Samuel. The Defendant pleaded as follows; "And the faid Samuel Hubbart against whom the faid original "writ of the faid George hath been fued out by the name of Francis Defendant with"Hubbart 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 Maffachuffets in North America and by the name of Samuel S. H.; Plaintiff “Hubbart hath always hitherto fince his baptifm been called and having treated this plea as a nul"known, to wit at London aforefaid in the parish and ward afore- lity, and figned "faid; without this that the faid Samuel now is or at the time of judgment accordingly, the Court "fuing forth the faid original writ of the faid George was or ever refused to fet it ❝ before had been, or ever fince hath been called by the Christian aside. name of Francis, as by the said writ is above supposed. And out craving oyer that his name was 1797. MURRAY v. HUBBART. [646] "this he the faid Samuel is ready to verify. Wherefore he prays Early in this term an application was made to the Court on Accordingly judgment having been figned by the Plaintiff, and a rule nifi obtained by the Defendant to fet it afide for irregularity; Clayton Serjt. fhewed caufe 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 Wilf. 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 (b), Doug. 228. and that if the plea were a nullity the Plaintiff might fign judgment. Wagstaffe v. Long, Barnes, 263. ed. 3. He also cited Sir William Hick's cafe, 1 Vent. 154. Heywood Serjt. contrà infifted, 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 Thelcall's Digeft, lib. 10. cap. 2. f. 1. it is faid "bomme ne puit dire riens al Briefe devant oier eu del Briefe; pur que demandons vier del Briefe," and Bracton lib: 5. cap. 17. is there cited. (b) See allo Reg. Gen. T. 19 Geo. 3. B.R. to the fame effect, and Spalding v. Mure, 6 Term Rep. 364. where the Court faid " formerly a variance between the writ and declaration might have been taken advantage of by the Defendant's craving oyer of the writ; but the Court have laid down a rule that the Defendant shall not have øyer of the writ for the purpose of setting aside the proceedings." According to the report in Douglas of Boats v. Edwards, a cafe in the common pleas was much relied on, which cafe, as appears from the note, was Ford v. Burnham, Barnes 340. ed. 3. There Defendant having pleaded a tender ante diem impetrat: brev: orig: Plaintiff replied an original before the tender; upon which plead plead mifnomer in abatement; and that this therefore was an experiment, for if the Plaintiff had demurred he could only have had a judgment of refpondeas oufler. He urged that this was not a plea to the jurifdiction, but to the perfon, and that no plea to the perfon could be pleaded after oyer. Theloall's Dig. 1. 14. c. 5. and that a precedent of fuch a plea pleaded without oyer was to be found in Afton's Entries (a), 1 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 miftake of the statement of the writ in the declaration: it fuppofes 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 againft Francis, but againft Samuel; it is that Samuel was attached to anfwer; Samuel arrefted indeed by the name of Francis; the arreft, however, is not the operation of the writ, but of the mefne procefs, which is out of the queftion after appearance. Now, taking it that the writ is recited to be a writ againft 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 fubject,) that the Defendant muft offer in fome manner to make out the contents of the matter of record; this he has not done, mistaking, as we fuppofe, the import of the recital of the writ in the declaration. If it be faid that the writ ought not to have been fo recited, it may be answered, firft, that is not now the question; and fecondly, there is no reafon why it fhould not be fo recited; for the objection to the mefne procefs 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 cafe of Hole v. Finch, the parties being probably aware how easily the mistake in the mefne procefs would be rectified upon the record after appearance, applied to set aside the mefne process for irregularity. The application before appearance would in all probability have been granted. But the Court refufed to do it after appearance, and intimated that the miftake might be cured in the way which I have mentioned. The cafe, therefore, comes to this, that fo long (a) Vid. etiam Raftall's Entr. fo. 107. Herne's Pleader, 1. and I Wentworth's Syft. of Plead. 3. 38. 47. However, in Hole v. Finch, 2 Wilf. 293. where the objection was grounded on a misnomer in the writ, TT 4 as 1797. MURRAY v. HUBBART. Feb. 13th. 5 T.R. 491.494. If A. depofit bills indorfed in blank with B. his bank er, to be received when due, and the latter raise money upon them with C. as it is the practice of the Court to iffue the mefne procefs first, and to allow an original to be fued out afterwards, if neceffary to fubftantiate the proceedings, no advantage can be taken after appearance of a mifnomer in the mefne procefs. If, indeed, the Plaintiff carry the fame miftake into the declaration, the plea of mifnomer 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 ftates to be the name of baptifm, and so the plea will be an anfwer to the writ and declaration. Here, as I have obferved, it fays 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 figned; but as the cafe is involved in fome perplexity, it may be right to let the party in to plead upon proper terms. On a fubfequent day, however, the rule was difcharged without cofts. T COLLINS V. MARTIN and Others. HIS was an action of trover for two bills of exchange depofited with the Defendants under the following circumftances: The bills were fent by the Plaintiffs to Mefirs. Nightingales, his bankers, indorsed in blank, in order to be received by them when due, and to be carried to his account. In the bankers' book they were entered fhort: and the balance of account between the bankers and the Plaintiff was in favour of the latter. them by pledging The Nightingales being in want of money depofited the bills in queftion, among others, with the Defendants, who were alfo bankers; and gave them an acknowledgment in writing for a fum of money received upon this depofit. The Nightingales having failed, this action was brought to recover the bills. Eyre Ch. J. before whom the caufe was tried at the Guildhall fittings after Michaelmas Term 1796, finding upon enquiry that there was no evidence to fhew that the Defendants knew the circumftances under which the bills came into the hands of the Nightingales, or the fituation of the account between them and the Plaintiff, directed a nonfuit. To fet afide this nonfuit, a rule nifi having been obtained upon a former day; another banker, and afterwards become bank rupt; A. cannot maintain trover against C. for the bills. Le Blanc and Palmer Serjts. in the courfe of the Term fhewed caufe. This cafe may be decided without breaking in upon the doctrine of pledges, or denying that bankers are in some respects factors. |