Opinion
(1793.)
Debt in Bristol on concessit solvere secundum consuetudinem civitatis. Judgment given, error assigned in the King's Bench, that it does not appear what this custom is, it being only said secundum consuetudinem, etc. The defendant in error pleaded in nullo est erratum.
Crew, pro defendente, prayed that he might be allowed to supply the defect, that is, by an averment of the custom.
It ought to be put in the declaration, in Bristol, or may be alleged here before the plea in nullo est erratum. But now it cannot be made part of the record.
Crew. I will allege it and leave the other party to demur.
We doubt that it may be made part of the record. We think it cannot. But we will take time to think on it.
Before he pleads in nullo est erratum the defendant may allege the custom and conclude, so, in nullo est erratum.
The custom ought to appear in the record below, and not in the pleadings in error. 2 R., 3, 9. How a man is to take advantage of a custom to affirm his judgment.