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1798.

M'COLLAM

CARR.

| Eyre Ch. J. Does the Court of Conscience try contracts made on the high seas, by considering them as if made in the parish of Saint Mary le Bow in the Ward of Cheap? These actions though tranfitory as to the superior Courts are not fo as to the Court of Conscience : clearly therefore, the cause of action in this case did not arise within the jurisdiction of that Court. Besides the action arises on a contract, part of which has been fatisfied by money on account. Is there any case where the ultimate balance of an account only being under 40s. the Court has allowed a fuggeftion ? (a) I should pause upon such a case since the most intricate point in accounts between merchant and merchant might by this means come to be decided before a County Court. It seems to me that the original demand ought to be under 40s.

Shepherd took nothing by his motion. (6)

(a) See Fitzpatrick v.Pickering, 2 Wils. following, both these points again arose, 68; Gross v. Fifoer, 3 Wils. 48.

when the Court adhering to the above de (6) An application of the same nature termination refused a rule to thew cause. having been made under fimilar circum- Pitts v. Carpenter, 1 Wils.525. Heaward fances in Bell v. Martin, in Trinity Term v. Hapkiun, Doug. 449.

that the con

and C. "fome or one of them” is

on the day on which che deed

Vaux v. ANSELL.
April 26th.
An annuity med A RULE nifi for setting aside an annuity having

been obtained on morial stating a former day on the ground of the following defect in the fideration money

memorial, viz. that the confideration money was stated to have was paid to 4. 8. been paid to A. B. and C. “fome or one of them;"

Adair Serjt. now shewed cause, and contended, that as it apbad : though it peared by the indorsement on the deed that the money was paid money was paid on the same day on which the deed was executed by all three para

ties, it might be presumed that they were all present at the time was executed of payment, and therefore payment to any one of them was a by them all.

payment to all.

The Court however observed, that as the payment appeared to have been made on the fame day only, and not at the same time when the deed was executed by all the parties, it could not be presumed that they were all present at the time of payment.

Adair then offered to produce an affidavit of that fact ;

But the Court were clearly of opinion that a defect of this kind in an annuity memorial could not be remedied by a fubsequent affidavit.

Rule absolute. Shepherd Serjt. in support of the rule.

1798.

averment of a

the name of S.

BURBIGE v. Jakes.

April 27th.

1 Taun. 570. his was an action on the case for raising the footpath on Evidence of a

houie fituate in each fide of the Plaintiff's house, by which the water was the parish of M. collected immediately in front of it. The declaration ftated that will support an the Plaintiff was poffeffed of a messuage " at Sheerness in the house“ at S." county of Kent.At the trial it was proved, that the houfe was S. being extra

parochial, and situate in the parish of Minster, which is contiguous to Sheerness ; both places that Sheerness is extraparochial; but that both places usually go utually going by by the name of Sheerness. A verdiet having been found for the plaintiff, Shepherd Serjt. now moved for a rule nis, to set it aside and enter a nonsuit on the ground of the variance between the declaration and the evidence, arguing that though Weftininfier usually goes by the name of London, yet that it is not sufficient fo to lay it in pleading.

The Court (absente Eyre Ch. J.) were of opinion that as the house was not stated to be in the parish of Sheerness it was well enough, since it appeared to be within the diflrict of Sheerness.

Shepherd took nothing by his motion.

WEBB V. Matthew.

May 3d. Tue bail having been rejected, in this action, in which no The Court will

bail-bond had been taken, the Plaintiff brought escape not permit a against the Sheriff.

justify bail after Cockell Serjt. for the Defendant, now moved to justify new an action for an bail, which was opposed by

escape com

menced against Marshall Serjt. on two grounds: ift, That the new bail were the heriff, who described in the notice as added, whereas both the former bail like a bail bond. having been rejected, there was no bail in the cause to which they could be added (but this objection was immediately overruled by the Court): 2dly, That if the new bail were allowed, it would afford an answer to the action against the Sheriff which had been commenced on fufficient ground: he cited Fuller v. Prest, 7 Term Rep. 109.

Cockell contended, that Fuller v. Preft did not apply, as in that case the application was made on the part of the Sheriff, who came to ask a favour: but that herethe Defendant not being implicated in

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the Sheriff's misconduct should not be prevented from defending the action.

The Court said, that as an action for an escape had been commenced against the Sheriff, if bail were now permitted to be put in, the proceedings in that action must be stayed: and that this motion therefore ought to be considered in the same light as an application on the part of the Sheriff to stay proceedings against him in the action for the escape. That as the Sheriff had neglected to do his duty, he ought not to be relieved, for the Court could not too strongly mark his conduct in omitting to follow the directions of the statute (a). If there was any reason for making a private engagement it ought to have been made to the Plaintiff.

Bail rejected. (a) 23 11.6.c.9.

May 5th.

NORTON V, FAZAN.

Defendant's SSUMPSIT for necessaries fold to the Defendant's wife and wife having

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children. committed adultery, he left Some time previous to the delivery of the goods, the Defendant her in his house

two chile having discovered that his wife kept up an adulterous intercourse dren bearing his with another man, separated himself from her, leaving her in out making any possession of the house which he had inhabited, together with provision for her two children bearing his name. In this house she was living in a of the requence state of adultery, at the period when the goods in question were tion; she con- delivered. The Defendant had made no regular provision for tinued in a state of adultery;

his wife. The cause was tried before Eyre Ch. J. at the Sittings held, that the at Westminster in Easter Term, who was of opinion that if the husband Thould be liable for ne. Plaintiff knew or ought to have known that the separation processaries furnith- ceeded from the adultery of the wife, the jury should find for ed to her unless it appeared that

the Defendant; if not, that the Plaintiff was entitled to recover. the Plaintiff Verdict for the Plaintiff 21. 1os. knew or ought to have known Clayton Serjt. now moved for a rule calling on the Plaintiff to the circum- shew cause why the verdict should not be set aside and a nonfuit stances under which she was

be entered. He contended, that whether the Plaintiff had living notice of the adulterous intercourse or not was immaterial, and

cited Morris v. Martin, 1 Str. 647. Manwaring v. Sands, 1 Str. 706. and Govier v. Hancock, 6 Term Rep. 603., and that as the separation was notorious, and the adultery committed during

the feparation, the Defendant was discharged.

EYRE 1798.

NORTON

FAZAN.

Eyre Ch. J. If the Defendant in another action brought against him by some other tradesman shall be able to establith the notoriety of his wife's fituation, he may defend himself. But as the case stands at present this woman appears to have been living in a house in which she was placed by the Defendant himfelf, together with two children bearing the husband's name, both of whom were born in wedlock. It is true that she had an adulterous intercourse with another man, but that was not proved to be known to this tradesman. If the Defendant can bring it home to any other tradefman who shall be in the fame situation as the present Plaintiff, that he did know or ought to have known the circumstances under which the wife was living, the Defendant may perhaps beable to prevent another verdict paffing against him.

Buller J. Every case on the facts is peculiar to itself, and this is so different from every other case which has been decided in Westminster-hall that I consider it as anomalous. The verdict is clearly and strictly right. The wife committed adultery for a considerable time while she was living with her husband; he voluntarily yielded his bed to the adulterer, and made no provifion for her. Then what colour of defence is left? Knowing of her criminal conduct and having made no provifion for her, he must maintain her as before.

HEATH J. I am of the fame opinion.
ROOKE J. I am of the same opinion.
Clayton took nothing by his motion. (a)

(2) 1 Lev.5.

May 5th. GREEN . REDSHAW,

2 Bof. & Pullo

I10. 298. The affidavit to hold to bail in this case was entitled “ William Ifan affidavit to THE Green Plaintiff against James Redshaw Defendant,” but in the hold to bail is

entitled, it is bad. body of the affidavit it was stated, that James Redshaw, without The Court will adding the word “ Defendant,” was indebted &c.

never allow a

supplemental A rule nis for entering a common appearance having been affidavit excepe obtained on the ground of the affidavit being entitled,

1o explain an

ambiguity in the Clayton Serjt. now shewed cause, and contended that as the original affidavit. affidavit was positive that James Redshaw was indebted, the title alone would not vitiate it, and that none of the cases went that length.

But the Court thought the objection good, saying that it was in consequence of a decision of this Court that the Court of King's

Bench

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1798

GREEN

REDSHAW.

Bench had made a rule (a) that no affidavits to hold to bail should be entitled.

Clayton then applied for leave to file a supplemental affidavit ; and cited Hollis v. Brandon. (6)

Sed per Eyre Ch. J. The Court will never receive a supplemental affidavit unless to supply something which is ambiguous on the face of the original affidavit ; and which the Court for its own satisfaction withes to have explained; and on this ground proceeded the offer of leave to file a supplemental affidavit in Hollis v. Brandon. But if it were allowed in this case, it would be making that right which was wrong at the time when it was done; and would be in the nature of an amendment. Per Curiam,

Rule abfolute.

(6) Anto, P.36.

(w) Vid. Clarke v. Cauthorre, 7 Term. Rep. 321. and Reg. Gen. Trix. 37 Geo. 3. B.R. 7 Term Rep. 434.

May 8th.

MADDOCKS v. HOLMES and others.

The Court will SHEPHERD Serjt. having moved for a rule nih to set aside a reDefendant from

gular interlocutory judgment which had been figned in this pleading the case for want of a plea, on the terms of paying the costs, pleading Statute of Limitations on setting inftanter, taking short notice of trial for the Sittings after Term, aside a regular and giving judgment as of the Term; interlocutory judgment.

Marshall Serjt. said he was instructed to oppose this motion in the first instance unless the Defendants should be restricted from pleading the Statute of Limitations, and cited Willett

Aiterton, i Bl. 35. to shew that the Court never let in that plea where they set aside a regular judgment. (a)

But the Court said, that the plea of the Statute of Limitations was not necessarily unconscientious, and that of late it had been confidered as a fair plea in the King's Bench (6), though formerly it had been thought otherwise.

Rule abfolute on the terms proposed.

(a) See also Forbes v. Ld. Middleton, 2 Str. 1242

(6) Rucker and another v. Hannay Bart. 3 Tere Rep. 124.

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