GENERAL ISSUE, &c. tracts were say that the said several supposed promises and undertakings, in the. said declaration mentioned, if any such were or was made, were and each and every of them was made by them the said C. D. and E. F. made by detogether with the said A. B. one of the said plaintiffs jointly, and not fendants jointly with one of by them the said C. D. and E. F. separately, from and without the the plaintiffs said A. B. to wit, &c. aforesaid, *and this, &c. [Conclude with a veri- (b). fication, as ante, 470, sixth precedent.] [ ⚫ 472] CD And the said C. D. by E. F. his attorney, [or if the defendant Infancy of de ats. A. B. be still an infant, say by "G. H." admitted (d) by the court of our said lord the king, before the king himself, (or in C. P. " by the justices of our said lord the king here,") as guardian (e) of the said C. D. to defend for the said C. D. who is an infant under the age of twenty-one years,] come and defends the wrong and injury, when, &c. and says that the said A. B. ought not to have or maintain his aforesaid action thereof against him, because he says, that he the said C. D. at the time of making of the said several supposed promises and undertakings in the said declaration mentioned, was an infant within the age of twenty-one years, to wit, of the age of years (f), to wit, at, &c. aforesaid (g), and this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] C. D. ats. :} fendant (c). And the said C. D. in person (i) comes and defends the wrong Coverture of defendant (h). A. B. and injury, when, &c. and says, that the said A. B. ought not to have or maintain his aforesaid action thereof against her, because she says that she *the said C, D. before, and at the time of the making [473] (b) As to this plea, see 2 B. and P. 124, 5. In Moffatt and others v. Van Millingen and others, Michaelmas Term, 27 Geo. 3. a plea in abatement to the same effect was held good on demurrer, see MSS. Precedents, 23 Vol. 71. See plea by an executor, that testator had a partner who survived him. 5 East. 261. (c) Infancy may be given in evidence under the general issue in assumpsit. 1 Bos. and Pul. 481, n. a. ante, Vol. 1. Index, tit. Infancy. But it is in general better to plead it. (d) This should be stated, 2 Saund. 117. g. n. 1. (e) An infant must defend by guar. dian and not by frochein ami. 2 Saund. 117. f. n. 1. material. (g) The venue in the declaration, but the omission would not prejudice. 2 Hen. Bla. 161. 1 Saund. 8. a. (h) Coverture may in assumpsit, and indeed in debt be given in evidence under the general issue; but it is frequently advisable to plead it 12 Mod. 101. When the defence is not that the feme was married at the time the contract was made, but merely that her husband ought to be joined in the action, the coverture must be pleaded in abatement, and not as above in bar, ante, 462. n. p. Evidence in support of it, 1. Campb. 62. 2 Campb. 113. (i) If the defendant be still married, she must plead in person and (f) The precise age is not here not by attorney, ante, 462. n. q. COVERTURE of the said several supposed promises and undertakings in the said declaration mentioned, was and still is the wife of one G. D. to wit, at, &c. aforesaid, and this, &c. [Conclusion with a verification, as ante, 470, sixth precedent.] ALIEN ENEMY. Plaintiff an alien enemy resident here (1). Plaintiff alien enemy resi. dent abroad (n). [First general issue (k), and then actio non, as ante, 469, third precedent to the t,] because he says that the said A. B. is an alien, born in foreign parts, out of the allegiance of our lord the now king, and within the allegiance (m) of a foreign state, to wit, of, &c. to wit, at, &c. aforesaid, and not made a subject of our said lord the king, by naturalization, denization, or otherwise; and the said C. D. further saith, that long before, and at the time of the commencement of this suit, the persons exercising the powers of government in the said foreign state of aforesaid, were and still are at war with and the enemies of our said lord the king, to wit, at, &c. aforesaid, and that the said A. B. so being such alien born as aforesaid, and an enemy of our said lord the king, and not made a ́subject of our said lord the king by naturalization, denization, or otherwise, entered and came into this kingdom, and still remains herein, not having any letters of safe conduct from our said lord the king, or any licence or permission of our said lord the king, to be, reside, or remain in this kingdom, and this, &c. [Conclusion" with a verification, as ante, 470, sixth prece'dent.] (1). [Third plea, actio non, as ante, 469, third precedent to *the †,] because he says that the said A. B. is an alien, born in foreign parts, out (*) The court of C. P. will not permit the defendant to plead double, viz. the general issue and alien enemy, 1 Bos. & Pul. 222. (1) As to this plea and the precedents, see 8 T. R. 166. Rast. Ent. 252. 4 Mod. 405. 4 East. 502. 3 Wentw. 255. Stat. 43 Geo. 3. c. 155. Alien enemy may be pleaded in abatement, see precedents, 1 Wentw. 7. 42. 51. Lil. Ent. 1. Ast. Ent. 11. and other precedents. 1 Wentw. Index. As the courts will not in general allow a defendant to plead alien enemy with any other plea, see 1 B. & P. 222. 2 B. & P. 72. 12 East. 206. 10 East, 326. Ante, 1 Vol. 541. It may be advisable in some cases to plead alien enemy in abatement. [Et vide ante, Vol. 1, 435.] (m) The meaning of this word, see Cobbett. State Tri, 588, 7 Co. 2. and 1 B. & P. 164, &c. (n) See the notes to the last precedent, and the form, 4 East. 502. An Englishman living in an enemy's country cannot sue, 3 B. & P. 113. (1) This plea is not sufficient: for it is not enough to state that the plaintiff had no license to remain in the country, but it must be averred that he had been ordered by the sovereign to leave the country, for until then a license is to be presumed. 10 Johns. Rep. 70. of the allegiance of our said lord the king, and within the allegiance ALIEN ENEMY, of a foreign state, to wit, in, &c. aforesaid, that is to say, at, &c. aforesaid, and not a subject of our lord the king, by naturalization, derization, or otherwise; and the said C. D. further saith, that at the time of the commencement of this suit, the persons exercising the powers of government, in, &c. aforesaid, were and still are at war with and enemies of our said lord the king, to wit, at, &c. aforesaid; and that the said A. B. so being such alien born, and such enemy as aforesaid, at the time of the commencement of this suit, was and still is resident and living out of this kingdom, and within the aforesaid, (2) and adhering to the said enemies of our lord the king, &c. and this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] [Actio non, as ante, 469, first precedent to the †,] because he says, BANKRUPTCY. that after making of the said several supposed promises and under- Bankruptcy of defendant. (o). takings in the said declaration mentioned, if any such were made, [and before the exhibiting *of the bill of the said A. B. in this behalf, (or in C. P. "before the commencement of this suit,")] (h) to wit, on the day of A: D. he the said C. D. became a bankrupt, within the true intent and meaning of the several statutes (0) This defence must be pleaded, 1 Campb. 363. 12 East. 664. The defendant may also plead the general issue and any other plea. This plea is given by the 5 Geo. 2. c. 30. s. 7. and if the certificate were allowed before the action was commenced, or after the action, but before plea, provided the act of bankruptcy was committed before the commencement, of the action, this general form will suffice, see 9 East. 82. (which seems. to qualify the dictum in the latter part of the case, in 6 East. 413. and in 2 Smith. 659.) Ante, 1 Vol. 635, and 3 Wentw. 188. a. b. but if the defendant did not obtain his certificate till after issue joined, it may be advisable to plead bankruptcy specially, setting out the proceedings, ante, 1 Vol. 635. and should there shew the allowance of the certificate by the (1) It does not seem necessary to [⚫ 475] (2) It is altogether unnecessary to aver the plaintiff's residence in the enemy's country, for the fact of his being an enemy, cannot depend upon any locality; but it is sufficient to state that he is an enemy, or adhering to the enemy, or what is equivalent thereto. 6 Binney, 241. Et vide 10 Johns. Rep. 183, 184. BANKRUPTCY. then in force concerning bankrupts, to wit, at, &c. aforesaid, and that the said supposed causes of action in the said declaration mentioned, if any such there be, and each of them did accrue to the said A. B. before he the said C. D. so became a bankrupt, as aforesaid, (q) to wit, at, &c. aforesaid, and of this he the said C. D. puts himself upon the country, &c. (r). In the King's Bench (or C. P.) Plea of bankruptcy of de next after in (t) Term, 51 Geo. 3. [First general issue, as ante, 471.-2d. common plea of bankruptcy, as ante, 474, and 3d. as follows :-] And for a further plea in this befendant where the certificate half, the said C. D. by leave of the court here, for this purpose first was obtained had and obtained, according to the form of the statute in such case after the commade and provided, says that the said A. B. ought not further (u) to mencement of have or maintain his aforesaid action thereof against him the said C. D. because he says, that the said C. D. before and on the A. D. -> the suit (s). Defendant a trader. [*476] Petitioning creditor's debt. Act of bank. ruptcy. Commission issued.† day of and -, by -and -, and from thence continually, until the suing out of the commission of bankrupt hereinafter mentioned, was a during all that time did use and exercise the trade of a way of bargaining, exchanging, bartering, and chevizance, and sought his trade of living by buying and selling, to wit, at, &c. aforesaid; and the said C. D. so using and exercising the trade of a — seeking his trade of living as aforesaid, afterwards, to wit, on the day of A. D. -, at, &c. aforesaid, became and was indebted to one E. F. a subject of this realm, in the sum of L., of lawful money of Great Britain, for a true and just debt due and owing from the said C. D. to the said E. F. and the said C. D. was then and there also indebted to divers other persons, in divers other large sums of money, and the said C D. being so indebted as aforesaid, and being a subject of this realm, and so using and exercising the trade and business of a -, and seeking his trade of living as aforesaid, afterwards, to wit, on the same day and year last aforesaid, at, &c. aforesaid, the said debt to the said E. F. and the said other debts being then and there due, and unpaid, and unsatisfied; he the said C. D. became and was a bankrupt, within the true intent and meaning of the several statutes then and still in force concerning bankrupts, made and provided, some or one of them, and that thereupon afterwards, to wit, on the (9) This allegation is necessary. 4 T. R. 156. (r) The plea is to conclude to the country, 1 P. Wms. 258, 9. 10 Mod. 160. 247. In K. B. the plea need not be signed by counsel, 6 T. R. 496. but in C. P. it must be signed by a sergeant, 3 Bos. and Pul. 171. (8) See the notes to the last precedent. (t) Some day in the term after the certificate was allowed. (u) As to this allegation, see 6 East. 413. 4 East. 502. 9 East. 82. ante, 469. † Examine with the commission. day of, A. D. aforesaid, at, &c. aforesaid, a certain BANKRUPTCY. commission of bankruptcy, under the great seal of the united kingdom of Great Britain and Ireland (x), bearing date at Westminster, the same day and year last aforesaid, grounded upon the said several statutes, some or one of them, upon the petition of the said E. F. was duly award. ed and issued (y) against the said C. D. directed to certain commissioners therein named, to wit, G. H., I. K., L. M., N. O., and P. Q., by which said commission our lord the king did name, assign, and appoint, constitute, and ordain them the said G, H. &c. &c. &c. his special commissioners there, giving full power and authority to the said commissioners, any four or three of them, to proceed according to the statutes in the said commission specified, and all other statutes in force concerning bankrupts, not only concerning the said bankrupt, his body, lands, tenements, freehold and customary goods, debts, and other things [477] whatsoever, but also concerning all other persons who by concealment, claim, or otherwise, did or should offend touching the premises in the said commission specified, or any part thereof, contrary to the true intent and meaning of the same statutes; and our said lord the king did thereby command the said G. H. &c. to do and execute all and every thing and things whatsoever, as well towards satisfaction and payment of the said creditors as of the plaintiff, the bankrupt aforesaid, as towards and all other intents and purposes, according to the ordinances and provisoes of the said statutes; and our said lord the king, by the said commission, commanded the said A. B. &c. &c. or any four or three of them, to proceed to the execution and accomplishment of the said commission, according to the true intent and meaning of the statutes, with all diligence and effect. As in and by the said commission, relation being thereunto had, will more fully appear; by virtue of said Defendant commission, and by force of the said several statutes concerning bank- found a bankrupts, the said G. H., I. K., and L. M., the major part of the said commissioners, named in the said commission, [having severally and respectively duly taken the oath prescribed and appointed to be taken by commissioners of bankrupts, according to the form of the statute in that case made and provided, and having then and there entered and kept a memorandum thereof among the proceedings in the said commission (z),] afterwards, to wit, on the said day of, A. rupt. D. -, aforesaid, at, &c. aforesaid, did, in due form of law, find that the said C. D. had become a bankrupt, within the true intent and meaning of the statutes made and then in force concerning bankrupts, before the date and issuing forth of the said commission, and did then and there declare and adjudge him to be a bankrupt accordingly. And Notice in Lon. don Gazette. the said C. D. further saith, that afterwards, to wit, on the day (x) See 1 Taunton. 71. (y) The usual allegation that it issued out of the Court of Chancery is incorrect. (z) In some precedents the part within the brackets is omitted. |