
    GENERAL COURT,
    MAY TERM, 1805.
    Dyson vs. West’s Ex’x.
    The omission of the word security in the probate of an account under the act of 178í>, ch» 46, is fatal
    Two several probates of the same account under that act, taken al different times* cannot be considered together so as to make either complete, if in itself each be defec-
    The above aet, so far as it relates to the proof of ac» counts, must be strictly construed.
    The plaintiff not having filed an account to meet a count in his declaration for matters pioperiy chargeable m.ac* count, is not a sufficient ground for the court to grant leave, to amend the declara-
    Assumtsjt for goods, 'wares and merchandize, sold and delivered, &c. and for sundry matters properly ehargeable in acr.ouut.
    The defenda..t pleaded non assumpsit and plene ad-ministravit. There was the general replication to the last plea, and issues were joined. The plaintiff brought this action as surviving partner of Dyson, Rogers & Co. (foreign merchants,) against the defendant as executrix of Stephen West, surviving partner of John Hobson.
    
    At the trial the plaintiff offered in evidence to the jury an account of the goods shipped bv the house of Hyson, Rogers & Co. to West & Hobson, which was provi-d os follows, to wit: «“'London, to wit. Kingdom of Great Britain. On the 27th of November 1799, personally appeared Mraham Dyson, ofLondon, merchant, i ate partner with John Rogers and Ely Hyson of London, merchants, deceased, who carried on trade and merchandize under the firm of Hyson, Rogers & Co. before me the subscriber, lord mayor of the city of London aforesaid; and at the same time appeared J. W. of, &c. late clerk to the before mentioned partnership of Ü. R. & Go. and made path on the Holy Evangely of Almighty God, that the several bills of parcels marked No. &c. hereunto annexed, are bills of parcels of sundry goods, wares and merchandize, sold by the said B, R. & Co. and were shipped and consigned to Messrs. Stephen West and John Hobson, then of, &c. on their partnership account and risk, and that the same áre just and true as therein stated; and that the account current marked with letter E. hereunto annexed, entitled, &c. and signed by the said Ji. H. as surviving partner of the said J. R. and 
      E. D. deceased, is a just and true account, and that they believe the goods, wares and merchandize, charged in the said account, and the above bills of parcels, were bonaJiile delivered as charged, and that they, or either of them, have not, nor did the.said J. R. & 12. B. or either of them, to the best of these deponent’s knowledge and belief, receive any payment or satisfaction for the articles charged, more than credit is duly given for in and appearing upon the said account, nor have they the said J. K. and E. 1). or either of them, received any security for the sume, and that the balance charged and claimed is justly due, according to the best of their respective knowledge and belief.”
    It was sworn before, signed and certified, by the lord mayor, and a certificate by a notary .public that such person was lord mayor,; and also a certificate of the American consul, that the person certifying as notary public was a notary public.
    
      Shaajf, for the Defendant,
    objected that the probate to the account offered in evidence is not such as the act of 1785, ch, 46, requires, For the present the objection to the manner in which the account and probate have been authenticated is waved. The objection now urged is, that the probate is not conformable to the 4th section of the said act of 1785, and it arises under that part of the section which is in these words: “Provided that the party bringing suit for money aforesaid, or the price of goods, &c. shall, at or before the first imparlance court, make oath or affirmation before some judge or justice of this state, or before some court, judge, justice or officer of the state or country where such money, goods, &c. shall have been delivered, having authority, and to be certified as aforesaid, that he believes the money, goods, &c. charged in the account, to. which such oath, &c. shall be annexed, were bona fide delivered as charged, and that he hath not, to his knowledge or belief, received any payment or satisfaction for the articles charged more than credit is duly given for in and appearing upon the account, to which such oath,. &c. shall be annexed, nor hath he received 
      
      any security for the same, and that the batanee charged, and claimed is justly due, according to the best of his knowledge and belief.Here the court will perceive that there are three distinct branches in the section which must be complied with to make the probate complete. The first part of the section directs, that there should be disinterested proof of the delivery of the goods, and that the person bringing the suit must prove,
    1. That he believes the goods as charged were delivered, and that he hath not .received any payment or satisfaction, &c.
    2. That he hath received no security for the same? and
    S. That the balance charged and claimed is justly due.
    It will be perceived that one of the material branch-» es in|tho probate provided for by tiiis act, has been omitted in the one in question. It states, that the plaintiff made oath that his deceased partners J. It. & E. B. had not received any security; but he does not swear that he himself had received no security. There is an attempt in the probate to pursue the words of the act, and it may be supposed the plaintiff was not willing to swear he had not himself received security. Every branch of the section is material, or why was it inserted? And unless every branch is complied with, the probate cannot bo legal. It is certainly very material for the person bringing the suit to swear he had not received any security, and it will not be sufficient if he swears that his deceased partners had not received any security. It is a principle of law, as this act creates a new mode of proof, if any of the requisites of the act are omitted it is not sufficient. If swearing that the account is just, and ♦that the balance charged is due, are sufficient to exclude a compliance with.the other branches of the section, there could have been no necessity for in-,sorting them.
    
      Buchanan, for the plaintiff.
    The account is substantially proved conformably to the act of 1785, ch> 46, which does not prescribe a {¡articular form. The objection is, that the word security has not been inserted in the. probate. The fourth section of the act consists of two parís; and as to the first part, respecting the sale and delivery of the articles to be proved by a disinterested witness, it has been conceded by the gentleman on the other side, that the plaintiff has complied with the act of assembly. But that under the second part, so far as it relates to the plaintiff, he has not complied with the law, the word security not.being inserted in the probate, and it has been, said that security may have been given to the plaintiff. By the probate it appears that the plaintiff swears that he has received no payment or satisfaction, and that the balance charged and claimed is justly due. But because he does not say he has received no security himselfit is seriously contended the act of assembly has not been complied with. The probate states that the plaintiff swore he had received no satisfaction, and this,, it is conceived, plainly shews that he has received no security. It will appear that the words in the act were intended to be pursued in the {¡róbate, and the omission of the word security may have been a clerical inaccuracy, which the court will think not material. Can security have been received if no payment or satisfaction has been received? Does it not virtually mean that no security has been given? If security had been given it surely would be a receiving satisfaction, and the word satisfaction embraces security. The gentleman has said that this is an act in derogation of the common law, and must therefore be strictly construed. The act intended to give to foreign creditors an easy inode of recovering their debts, and if the probate can justify the court in believing that there has been no payment, security or satisfaction, though any of those words should be omitted, they will consider it sufficient. Since this action was commenced, an account with a probate was forwarded from London; but they were returned, the probate not containing the csson? tials required by the act of assembly. Since then the present account and probate have been sent out, with the. former probate annexed to them. The plaintiff now oilers the former probate for the purpose of supplying any defects' or omissions in the present one, and contends that if they are taken together the supposed omission in the present probate will bo. amply cured, and the full proof required by the act will be made. out.
    Chase, ,C1i. J. 'When were the old and new probates made?
    
      Key,, for the defendant.
    The old probate appears to have been made in 1796, and the new one in 1799.
    Chase, Ch. J. Will not the question occur as to the security between 1796 and 1799?
    
      Johnson, for the plaintiff.
    The act of assembly does not specify at what time the probate is to be made.
   Chase. Ch. J.

The old probate cannot supply any defect which may be in the new probate, for although the plaintiff might have proved in 1796 that he liad received no security, yet in 1799, when the new probate was made, if he had received security in the interval, he could not make the probate, and that word being omitted in the hist probate, it may be well presumed he had received such security in that interval.

The court are not deciding how far the word security is essential. But they say, if it is an essential omission, the old probatq cannot aid if.

The court think the plaintiff?s counsel had belter consent to, withdraw a juror, and continue the case, for the purpose of getting better proof.

But the counsel of the defendant would not consent that a juror should be withdrawn, and upon examination the court discovered they had no authority to order a continuance without the consent of the defendant’s counsel.

-Where there Í9 no proqf applien-We to one of the Counts in the ■plaintiff’* decía Vation, the court •wilt not gire leave ¡to amend the declaration

Johnson, for the plaintiff,

prayed leave to amend the declaration, and that a juror might be withdrawn for that purpose. The declaration, he said, has a count for sundry matters, &c. and (hero was no account filed applicable to that count.

Shaaff, contra. This would be getting round the act of assembly for the amendment of the law. There is in the declaration a count for goods, wares and merchandise.

Chase, Ch. J. The Court consider that part of the act of assembly, (1785, ch. 46,J which requires that the party bringing the suit should swear that he had received no security, is an essential which cannot be dispensed with; and that the defect in the probate is in a matter of substance, and therefore fatal.

Chase, Ch. J. The Court are not authorised to give the leave. The act of assembly does not autho-rise the court to give leave to amend upon the ground stated,

Plaintiff nonsuited.  