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1797

DE GAILLON

VICTORJE

HAREL L'AIGLE.

M. L'Aigle accepted the bills, but on their becoming due refufed to pay; on which they were returned to England proteited, and the Defendant was arrested for the sum of 18ol., being the balance due to the Plaintiff on the whole transaction.

The Defendant stated 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 luppose from the Defendant's conduct in England, that in fact the was not married to him.

Le Blanc Serjt. shewed cause, Where it has been known for certain that the Defendant was a married woman, the Courts have discharged her(a); but where it has been doubtful, or collufion has appeared, they have put her to her plea of coverture, and let the question 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 present, 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 question. The Plaintiff's affidavit consists of inferences only, which are contradicted by his own acts, and letter. He cannot say that he did not suppose the Defendant married, as his own expression in the letter “I will fend * to your husbandwould refute that afiertion. He therefore dealt with her rather as an agent than as a separate 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 passed herself upon the world as a single woman, the Court will give her no relief; but if she was known to be married, it is otherwife. Pearson v. Meadon, 2 BI. 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 sum

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 “ caftody on filing common bail.” Here the plaintiff knew that the was married, and employed her to tranfact business with her husband. Therefore it is her husband's, and not her debt.

fe) Partridge v. Clarke, 5 Term Rep.194.

EYRE

Du GAILLON

HAREL

1797- Eyre Ch.J. In my apprehension you mistake the evidence.

The letter contains two diftinct transactions. In the first part, the

Plaintiff desires the Defendant to supply him with goods to the
VICTORIE amount of 700l., for which he promises to advance 300l. imme-
L'AIGLE. diately; and this has no connection with the husband. Then in

the second part, he states his intention of sending goods to the hus-
band at Hamburgh, for which he expects an adequate return.
The Plaintiff obtained 100l. from the Defendant in goods, and
bills for 200l., making in the whole zool.; 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 husband in one case,
for 6ool, which he had sent to Hamburgh, and for which the huf-
band was to return 6ool., and as I understand, he did fo. To the
wife, the Plaintiff had advanced 300l., and not receiving the goods
which he had desired, to the amount of 700l., required security.
She gave him 100l., and bills; and on the bills being protested,
he arrested her. This last transaction was with her, not with the
husband; the Plaintiff having advanced the money on that trade
which she was carrying on in England. I cannot but consider
that these parties came from France, where it is not unusual for
the wife to deal separately from the husband. In this case the
husband resided at Hamburgh, she lived with another man, and he
made no objection. She must therefore be responsible for her
own trading, and should not be allowed to shelter 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 cases afford no general rule. They
turn on nice circumstances. If the zool. had been advanced on
the husband's account, I should have wished the Court to inter-
pose; but she took it for her own use. The husband had no con-
nection with her trading. The observation of my Lord, that these
parties are French, is very material. In France married women
have many rights, which are allowed to none but single women in
this country. If she received the 300l. on her own account, she
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 security which he could

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obtain for his debt. But the money was originally advanced to 1797. her as a feme sole.

ROOKEJ. On the opening of this question I wished for further DE GALLON discussion, but on discussion am entirely satisfied. Let her plead her coverture.

L'Aigle. Rule discharged.

VICTORIE
HAREL

In Pritcbett qui tam v. Racbael Cross, with an affidavit, but put her to plead her : H. Bl. 18. where a rule for discharging a coverture; and he faid he had always unferne covert, who resided apart from her derstood that such was the course boch in burband, was made absolute, Gould J. seemed K. B. and C. B. te di approve of the summary proceeding P. Holt J, a married woman is to be difbs mocion, and of taking the fact of cover- charged upon Common Bail of course; but twe from the Defendant's affidavit. He if it be doubtful whether the be married or Dentioned the case of Mrs. Baddeley, 2 Bl. not, the shall be held to Special Bail, if the 1079., where the Court were not satisfied cause require Special Bail. 7 Mod. 10.

19th May.

KEAY and Another, Assignees of Taylor a Bankrupt,

v. RIGG.

2 Bof.&

Pull. 30.

6. 47. on the

SHEPHERD Serjt. on a former day obtained a rule to fhew cause The Court

why the defendant in this case should not be at liberty to will not refuse enter a suggestion on record, pursuant to the 22 G. 2. C.47., of his suggestion under being an inhabitant and reliant within the parish of St. Mary,

the 22 G. 2. Lambeth, and liable to be fummoned for the debt for which this ground that action was brought before the Court of Requests 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 sum of 408.; of bankruptcy. and why the Plaintiffs should not lose their costs in this action, and pay to the Defendant his costs 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 2l. 15.; but the jury found a verdiet for il. 16s. only.

Adair Serjt. now shewed cause. My objection is fingly this, that the Court of Requests has no authority to try a question of bankruptcy. There is no decifion, I believe, upon the point; I mult therefore submit it to the Court on the nature and reason of the case. The words of the statute which gives the jurisdiction are cautious; they are "touching such debts.” The intricacy attending questions of bankruptcy is well known, and how unfit the courts erected by this and similar statutes are to try them. It

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would be dangerous to those 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 such tribunals, by laying the damages under 40s. I contend therefore that the words of the statute do not bind the Court to an inconvenient construction, and that the filence of an act should not (as is sometimes the cafe) be carried too far.

Shepherd contrà. The Plaintiffs in this case are personal reprefentatives; now though an executor Defendant cannot be sued in these courts, Ailway v. Burrows, Doug. 263. yet a Plaintiff administrator is bound to fue in them, Wajev. Wyburd, Doug. 246. In the Court of Conscience act for Middlesex, 23 G. 2. c. 33. f.19., if the damages are less than 4os. the Plaintiff can have no costs, unless the judge certify that the bankruptcy, or title to the freehold, came principally in question; the Legillature 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 jurifdiction be given, the trial of bankruptcy is incidental to it. The Plaintiff muft make out his claim before these tribunals, however that claim may be constituted; though bankruptcy, or any other question, should happen to be connected with it. Many intricate points may be incidental to a defence, in which cafe these courts must do as well as they can: the present objection is only quarrelling with the jurisdiction of the court.

The words “ touching the debts” are very extensive. The jurisdiction is general, and it is incumbeift on the plaintiff to fhew an exception. My brother Adair complains of the silence of an act being carried too far, but here he wants to insert an exception not warranted by the act itself: that is making the act speak. The case is not of that importance which has been stated: questions of bankruptcy seldom lie in fo narrow a compass as 40s.; nor are they in general very intricate. . It would be cruel to make such small debts as arise on bakers' bills, and milk scores, the subjects of litigation in the superior courts, because a question of bankruptcy is involved.

BULLER J. seemed to think that there were authorities on the subject, and wished them to be looked into. He said that if an action would notliein these courts fora debt arifing in consequence of a judgment of a court of law, perhaps it might not for a debt

arising

1797

ΚΕΑΣ

Rico.

#rising in consequence of the decision of the commissioners of bankrupt, who have an equitable jurisdiction.

Leave was given to enter the suggestion, unless any authorities hould be produced.

On the 19th, Adair again mentioned the case of Ailway v. Burrows, as containing a principle which would support his argument. There Lord Mansfield held, that although there were noi express exception, yet if one were implied from the nature and reason of the thing, it was sufficient. If that were fo, the instance cited of acts containing express exceptions furnished an argument to prove that such a jurisdiction was against the reason of the thing. Taking all the acts together they appeared to form one code of legislation, 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 jurifdi&tion over the excepted matters, if the parties think proper to apply to them, but if they apply to the superior courts, they shall be protected; provided a certificate be made, that those matters came principally in question; for the object is not to withdraw any jurisdiction from the local courts. It would be much better that debts under 40s. Thould be given up, than that shey should be sued for in the superior courts.

Leave given to enter the suggestion.

.

trees on a com

In the Exchequer Chamber.

May fork.

S. C. 6 T.R. KIRBY and Another v. SADGROVE, in Error. 483.

S. C. 3 Anftr.

892. ERROR from the Court of King's Bench. The declaration there if the lord of

was in trespass, 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 seised in his demesne as of fee, in a certain farm in the said parish, and prescribed for a common of pasture for his sheep, levant and couchant, throughout the faid common field, in respect of such eftate for himself

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