Page:The English Reports v1 1900.pdf/798

of the said John Evangelist Cleer and company, was protested at Madrid aforesaid, according to the usage and custom of merchants upon the non-payment of the said contents thereof; by reason whereof, he the said Thomas Symons, according to the usage and custom of merchants, became liable to pay to the said John Evangelist Cleer and company, the said contents of the said bill of exchange, together with the interest, exchange and re-exchange, costs and damages, which should accrue from the delay and retardment of the payment thereof; and being so liable, he the said Thomas Symons afterwards, to wit, on the 1st day of January in the year aforesaid, at London aforesaid, in the parish and ward aforesaid, paid to the said John Evangelist Cleer and company, the said contents of the said bill of exchange; and the sum of £36 15s. of lawful money of Great Britain, for the interest, exchange and re-exchange, costs and damages, which did accrue from the delay and retardment of the payment thereof; of which said premises, the said Henry and Lawrence, who, etc. afterwards, to wit, on the 15th day of January in the same year, at London aforesaid, in the parish and ward aforesaid, had notice; and by reason of the premises, and by force of the usage and custom of merchants, they the said Henry and Lawrence, who, etc. became liable to pay to the said Thomas Symons, the said contents of the said bill of exchange, and the said sum of £36 15s. so paid by the said Thomas Symons to the said John Evangelist Cleer and company as aforesaid; and being so liable, they the said Henry and Lawrence, who, etc. in consideration thereof, afterwards, to wit, on the same day and year at London aforesaid, in the parish and ward aforesaid, took upon themselves, and then and there faithfully promised the said Thomas Symons, that they the said Henry and Lawrence, who, etc. would pay to the said Thomas Symons, the said contents of the said bill of exchange, and the said sum of £36 15s. so paid by the said Thomas Symons to the said John Evangelist Cloer and company as aforesaid, when they should be thereunto afterwards requested.

—The next count was upon the bill of exchange, made payable to Mr. Manuel de la Quintana, dollars, one thousand five hundred. And the plaintiff Symons laid his damage at £1300.

To this declaration, Parminter pleaded, by leave of the court, two pleas in bar: 1st, That there was not any record of the outlawry of the said Lawrence Barrow upon the said writ in the plea aforesaid, as alledged in the said declaration. 2dly, That Lawrence Barrow, in the said declaration named, before and at the time of obtaining of the original writ, on which the outlawry, by the said declaration, was supposed to be obtained and had against the said Lawrence Barrow; and also before and at the time of the awarding the writ of exigent, and continually from that time hitherto, did dwell and was commorant, and was then dwelling and commorant in parts beyond the seas, and out of the [46] limits of this realm, to wit, at Bilboa, in the kingdom of Spain, in the said declaration mentioned; and that the county of Cornwall, in this kingdom, was and is the shire next to the place where the said Lawrence Barrow, at the time of the said writ of exigent awarded, had his dwelling; and that not any writ of proclamation thereon was awarded, made, or directed to the sheriff of the said county of Cornwall.

In Trinity term 1740, the defendant in error (after having, by leave of the court, set forth the original writ in hæc verba), replied issuably to Parminter's first plea; and demurred to his second plea. Whereupon Parminter immediately joined in demurrer, and likewise demurred to the plaintiff's replication to his first plea; and shewed, for causes of demurrer, that it appeared by the said replication, that the writ upon which it was supposed the said Lawrence was outlawed, was not the same writ upon which the said Thomas Symons had, in form aforesaid, declared against the said Henry, but another, and variant from the original writ, recited in the said declaration of the said Thomas Symons; and for this, that the said replication was double, uncertain, and wanted form; and upon this the plaintiff joined in demurrer.

The cause was from thence continued till Hilary term 1746, when the demurrers came on to be argued before the Court of King's Bench; and were afterwards argued a second time in Trinity term 1747, when the court gave judgment for the plaintiff Symons on both demurrers.

In Michaelmas term following, a writ of inquiry of damages was executed, by rule of court, before the Lord Chief Justice Lee; when the inquest found damages generally for the plaintiff, £1300, the whole damages laid in his declaration.