Sheppard against Billie
| Jurisdiction | England & Wales |
| Date | 1795 |
| Year | 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 577
IN THE COURT OF KING'S BENCH.
3 East, 144. 2 M. & S. 23.
sheppard against baillie. June 9th, 1795. Replication to a plea in abatement, (that the promises were made by A. and B. jointly with the defendant) that A. and B. were in Scotland at the commencement of the suit, &c. and had no property within the jurisdiction of the Court by which they could be summoned, &c. is bad. [3 East, 144. 2 M. & S. 23.] This was an action of assumpsit on a bill of exchange against the defendant as acceptor, and for money lent and advanced, money paid, &c. The defendant pleaded in abatement that the supposed promises in the declaration mentioned were made by him and J. Gardner, B. Forrester, and A. Keir jointly, and not by the defendant only; averring that those three persons are still alive. There was a replication to this plea that Gardner, Forrester, and Keir were at the commencement of the suit and still continued in that part of Great Britain called Scotland, and that they had not any goods, lands or other property in England or within the jurisdiction of this Court, whereby they could be summoned, attached or distrained to answer, &e. To this the defendant demurred, and the plaintiff joined in demurrer. Baldwin in support of the, demurrer. The plea is in the usual form; and the replication is an attempt to introduce a novelty into the form of pleading and the proceedings of the Court. It is clearly settled that where several persons contract jointly, it is necessary for the plaintiff to sue all the parties to the contract, and proceed to outlawry against those who do not^eome in. The process of outlawry does not depend upon the residence of the party in England, nor upon his possession of property within the jurisdiction of the Court. Bailey eontrk Every plea in abatement ought to give the plaintiff a better writ, without whiak it cannot he supported. Now the replication states matter which shews that no process of outlawry issuing against tfee other; parties could be of any avail; K. B. xxx.-19 578 SHEPPAED V. BAH/EIE 6T.E.328. and that brings it to the question whether in such a case it be necessary for the plaintiff to incur all the expence and trouble of issuing such process, which cannot answer any purpose. For the outlawry would have been erroneous under the 31 Eliz. c. 3, s. 1, for avoiding secret outlawries, [328] which enacts that one writ of proclamation shall be awarded to the sheriff of the county where the defendant at the time of the exigent shall be dwelling; that the sheriff shall make three...
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