Trin. 2. Car.
DEBT in Bristol on concessit solvere secundum ordinem 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, &c. 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.
Doderidge, J. and Jones, J. It ought to be put in the declaration, in Bristol, or may be alledged here before the plea in nullo est erratum. But now it cannot be made part of the record.
Crew, I will alledge it, and leave the other party to demur.
Doderidge, J. and Jones, J.
We doubt that it may be made part of the record. We think it cannot: But we will take time to think on it.
Jones, J.
Before he pleads in nullo est erratum the defendant may alledge the custom and conclude, so, in nullo est erratum.
Doderidge, J.
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.