M. L'Aigle accepted the bills, but on their becoming due refufed to pay; on which they were returned to England protefted, and the Defendant was arrefted for the fum of 180l., being the balance due to the Plaintiff on the whole tranfaction. The Defendant ftated in an affidavit the Plaintiff's knowledge of her coverture at the time of her coming over to England: the Plaintiff, on the contrary, denied in his affidavit any intimate acquaintance with M. L'Aigle, and declared that he had reafon to fuppofe from the Defendant's conduct in England, that in fact fhe was not married to him. Le Blanc Serjt. fhewed caufe. Where it has been known for certain that the Defendant was a married woman, the Courts have difcharged her (a); but where it has been doubtful, or collufion has appeared, they have put her to her plea of coverture, and let the queftion be tried; and this I apprehend they will do, where the money is advanced to her on her own account. She has not ftated in her affidavit that her husband is likely at prefent, or ever, to return to England. The letter of attorney from M. L'Aigle was only colourable. · Shepherd Serjt. in reply. Had this been a separate trade by the Defendant, I could not have argued the queftion. The Plaintiff's affidavit confifts of inferences only, which are contradicted by his own acts, and letter. He cannot say that he did not fuppofe the Defendant married, as his own expreffion in the letter "I will fend to your husband" would refute that affertion. He therefore dealt with her rather as an agent than as a feparate trader. The Defendant did not draw the bills as a feme fole, but figned them "Wife H. L'Aigle," and the Plaintiff received them, and never brought this action till the bills were returned protested from Hamburgh. If the party has paffed herself upon the world as a fingle woman, the Court will give her no relief; but if she was known to be married, it is otherwife. Pearfon v. Meadon, 2 Bl. Rep. 903. So in Waters v. Smith, 6 Term Rep. 452. the Court faid, "Though when a married woman impofes on a trader, and "contracts on her own credit, we will not relieve her in a fum mary way; yet where it has clearly appeared that the Defend"ant was a feme covert, and there has been no contrariety of " evidence about that fact, the Court has discharged her out of cuftody on filing common bail." Here the Plaintiff knew that the was married, and employed her to tranfact business with her hufband. Therefore it is her husband's, and not her debt. f) Partridge v. Clarke, 5 Term Rep. 194. EYRE 1797. DE GAILLON ย. VICTORIE EYRE Ch. J. In my apprehenfion you mistake the evidence. The letter contains two diftin&t tranfactions. In the firft part, the Plaintiff defires the Defendant to fupply him with goods to the amount of 700l., for which he promises to advance 300l. immediately; and this has no connection with the husband. Then in the fecond part, he states his intention of fending goods to the hufband at Hamburgh, for which he expects an adequate return. The Plaintiff obtained 100l. from the Defendant in goods, and bills for 2007., making in the whole 300l.; the fum in which she, as acting for herself, was indebted to him. To whom then was the Plaintiff creditor? He was creditor to the hufband in one cafe, for 600l. which he had fent to Hamburgh, and for which the hufband was to return 600l., and as I understand, he did fo. To the wife, the Plaintiff had advanced 300l., and not receiving the goods which he had defired, to the amount of 700l., required fecurity. She gave him 100l., and bills; and on the bills being protefted, he arrested her. This laft tranfaction was with her, not with the hufband; the Plaintiff having advanced the money on that trade which fhe was carrying on in England. I cannot but confider that thefe parties came from France, where it is not unufual for the wife to deal feparately from the husband. In this cafe the husband refided at Hamburgh, the lived with another man, and he made no objection. She muft therefore be responsible for her own trading, and fhould not be allowed to fhelter herself under the name of her husband, who is in a foreign country. BULLER J. We are not called upon to decide whether the Defendant be married or not. It may happen that her coverture may be a good defence. These cafes afford no general rule. They turn on nice circumftances. If the 300l. had been advanced on the husband's account, I fhould have wifhed the Court to interpofe; but she took it for her own ufe. The husband had no connection with her trading. The obfervation of my Lord, that these parties are French, is very material. In France married women have many rights, which are allowed to none but fingle women in this country. If the received the 300l. on her own account, fhe is entitled to no favour. A discharge is a favour; and the question now is, Whether we are to grant a favour or not? If the can prove a marriage at the trial, it may be a defence at law. Let her put her coverture on the record. HEATH J. The Plaintiff took the bills from the Defendant, drawn by procuration, as the only fecurity which he could obtain for his debt. But the money was originally advanced to her as a feme fole. ROOKE J. On the opening of this question I wished for further difcuffion, but on difcuffion am entirely fatisfied. Let her plead her coverture. In Pritchett qui tam v. Rachael Crofs, 2 H. Bl. 18. where a rule for discharging a feme covert, who refided apart from her husband, was made abfolute, Gould J.feemed to disapprove of the fummary proceeding by motion, and of taking the fact of coverture from the Defendant's affidavit. He mentioned the cafe of Mrs. Baddeley, 2 BI. 1079., where the Court were not latisfied Rule discharged. with an affidavit, but put her to plead her P. Holt J, a married woman is to be dif- 1797. DE GAILLON V. VICTORIE KEAY and Another, Affignees of TAYLOR a Bankrupt, 19th May. v. RIGG. 2 Bof. & The Court will not refufe leave to enter a fuggeftion under the 22 G. 2. c. 47. on the SHEPHERD Serjt. on a former day obtained a rule to fhew caufe why the defendant in this case should not be at liberty to enter a fuggeftion on record, pursuant to the 22 G. 2. c.47., of his being an inhabitant and refiant within the parish of St. Mary, Lambeth, and liable to be fummoned for the debt for which this ground that a action was brought before the Court of Requefts for the Town and Court of ConBorough of Southwark in the County of Surry, and that the da- authority to mages recovered in this action did not amount to the fum of 40s.; of bankruptcy. and why the Plaintiffs fhould not lose their cofts in this action, and pay to the Defendant his cofts in this action, and also of this application. The Plaintiffs declared as affignees for tailors' work done by the bankrupt, and the cause was tried before Rooke J. at the fittings at Guildhall after laft Hilary Term. The original demand (which had never been objected to till the action was brought) was 27. Is.; but the jury found a verdict for 1l. 16s. only. Adair Serjt. now fhewed caufe. My objection is fingly this, that the Court of Requefts has no authority to try a queftion of bankruptcy. There is no decifion, I believe, upon the point; I muft therefore fubmit it to the Court on the nature and reason of the cafe. The words of the ftatute which gives the jurifdiction are cautious; they are "touching fuch debts." The intricacy attending questions of bankruptcy is well known, and how unfit the courts erected by this and fimilar ftatutes are to try them. It would fcience has no try a question 1797. KEAY ข. RIGG. would be dangerous to thofe commercial cities in which courts of this nature are established, if it were in the power of every one to draw questions of bankruptcy before fuch tribunals, by laying the damages under 40s. I contend therefore that the words of the ftatute do not bind the Court to an inconvenient conftruction, and that the filence of an act fhould not (as is fometimes the cafe) be carried too far. Shepherd contrà. The Plaintiffs in this cafe are perfonal reprefentatives; now though an executor Defendant cannot be fued in thefe courts, Ailway v. Burrows, Doug. 263. yet a Plaintiff adminiftrator is bound to fue in them, Wafe v. Wyburd, Doug. 246. In the Court of Confcience act for Middlefer, 23 G. 2. c. 33. S. 19., if the damages are less than 40s. the Plaintiff can have no cofts, unless the judge certify that the bankruptcy, or title to the freehold, came principally in question; the Legislature therefore confiders bankruptcy within the cognizance of these courts, and unless excepted by the statute establishing the court in question, it falls of course within its jurisdiction. EYRE Ch. J. It might have been prudent in the Legislature to have made the exception contended for. But if a general jurif diction be given, the trial of bankruptcy is incidental to it. The Plaintiff muft make out his claim before thefe tribunals, however that claim may be conftituted; though bankruptcy, or any other queftion, should happen to be connected with it. Many intricate points may be incidental to a defence, in which cafe thefe courts must do as well as they can: the prefent objection is only quarrelling with the jurifdiction of the court. The words "touching the debts" are very extenfive. The jurifdiction is general, and it is incumbent on the Plaintiff to fhew an exception. My brother Adair complains of the filence of an act being carried too far, but here he wants to infert an exception not warranted by the act itself: that is making the act fpeak. The cafe is not of that importance which has been stated: queftions of bankruptcy feldom lie in fo narrow a compass as 40s. ; nor are they in general very intricate. It would be cruel to make fuch small debts as arise on bakers' bills, and milk fcores, the fubjects of litigation in the fuperior courts, because a queftion of bankruptcy is involved. BULLER J. feemed to think that there were authorities on the fubject, and wished them to be looked into. He faid that if an action would not lie in thefe courts for a debt arifing in confequence of a judgment of a court of law, perhaps it might not for a debt arifing arifing in confequence of the decifion of the commiffioners of any authorities On the 19th, Adair again mentioned the cafe of Ailway v. Burrows, as containing a principle which would support his argument. There Lord Mansfield held, that although there were no exprefs exception, yet if one were implied from the nature and reafon of the thing, it was fufficient. If that were fo, the inftance cited of acts containing exprefs exceptions furnished an argument to prove that fuch a jurifdiction was againft the reafon of the thing. Taking all the acts together they appeared to form one code of legiflation, and questions of bankruptcy being excepted by 23 Geo. 2. c. 33. f.19. they were excepted in all. ROOKE J. In that act, bankruptcy is not excepted, unless the judge certify that it came principally in question, and no certificate could be expected in the present case. EYRE Ch. J. Even under that act the local courts have jurifdiction over the excepted matters, if the parties think proper to apply to them, but if they apply to the fuperior courts, they fhall be protected; provided a certificate be made, that those matters came principally in question; for the object is not to withdraw any jurifdiction from the local courts. It would be much better that debts under 40s. fhould be given up, than that they should be fued for in the superior courts. Leave given to enter the fuggeftion. In the Exchequer Chamber. KIRBY and Another v. SADGROVE, in Error. May 10th. S. C. 6 T.R. trees on a com to abate them. ERROR from the Court of King's Bench. The declaration there if the lord of was in trefpafs, for cutting down the trees of the Plaintiff the manor plant below, growing in the parish of South Moreton in the county of mon, a commonBerks. Plea: That the trees grew in a certain common field in the er has no right faid parish, and that one F. K. was feised in his demefne as of fee, in a certain farm in the faid parish, and prescribed for a common of pafture for his fheep, levant and couchant, throughout the faid common field, in refpect of fuch eftate for himself, |