¶11. The declaration is on a charter party between Briard and Hill, of the one part, and it is shown that Briard did not perform; while he ought to have declared that neither Briard nor Hill did perform. For if Hill did perform, it is sufficient. As in debt against an executor, the declaration ought to be that neither the executor nor the testator, etc. 9 Rep., 108,Tresham's case. But this was overruled on the authority of Clovery's case.
¶22. They ought to show that the place appointed was not one of those excepted. 8 E., 4, 7. Sed non allocatur, for this shall not be intended. Intrat., T. 3 Car. rot., 1038.