1798.

M'COLLAM

V.

CARR.

EYRE Ch. J. Does the Court of Confcience try contracts made on the high feas, by confidering them as if made in the parish of Saint Mary le Bow in the Ward of Cheap? Thefe actions though tranfitory as to the fuperior Courts are not fo as to the Court of Confcience: clearly therefore, the caufe of action in this cafe did not arife within the jurifdiction of that Court. Besides the action arifes on a contract, part of which has been fatisfied by money on account. Is there any cafe where the ultimate balance of an account only being under 40s. the Court has allowed a fuggeftion? (a) I fhould paufe upon fuch a cafe fince the most intricate point in accounts between merchant and merchant might by this means come to be decided before a County Court. It feems to me that the original demand ought to be under 40s. Shepherd took nothing by his motion. (b)

(a) See Fitzpatrick v. Pickering, 2 Wils. 68; Grofs v. Fiber, 3 Wils. 48.

(b) An application of the fame nature having been made under fimilar circumDances in Bell v. Martin, in Trinity Term

following, both these points again arose, when the Court adhering to the above determination refufed a rule to thew caufe. Pitts v. Carpenter, x Wils. 525. Heaward v. Hopkiun, Doug. 449.

VAUX v. ANsell.

ARULE nifi for fetting afide an annuity having been obtained on a former day on the ground of the following defect in the memorial, viz. that the confideration money was ftated to have been paid to A. B. and C. "fome or one of them;"

Adair Serjt. now fhewed caufe, and contended, that as it appeared by the indorsement on the deed that the money was paid on the fame day on which the deed was executed by all three parties, it might be prefumed that they were all prefent at the time of payment, and therefore payment to any one of them was a payment to all.

The Court however obferved, that as the payment appeared to have been made on the fame day only, and not at the fame time when the deed was executed by all the parties, it could not be prefumed that they were all prefent 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 fubfequent affidavit.

Shepherd Serjt. in fupport of the rule.

Rule abfolute.

1798.

THIS

BURBIGE V. JAKES.

HIS was an action on the cafe for raifing the footpath on each fide of the Plaintiff's house, by which the water was collected immediately in front of it. The declaration ftated that the Plaintiff was poffeffed of a meffuage" at Sheerness in the county of Kent." At the trial it was proved, that the houfe was fituate in the parish of Minfter, which is contiguous to Sheerness; that Sheerness is extraparochial; but that both places ufually go by the name of Sheerness. A verdict having been found for the plaintiff, Shepherd Serjt. now moved for a rule nifi, to set it aside and enter a nonfuit on the ground of the variance between the declaration and the evidence, arguing that though Westminster ufually goes by the name of London, yet that it is not fufficient fo to lay it in pleading.

The Court (abfente EYRE Ch. J.) were of opinion that as the houfe was not ftated to be in the parish of Sheerness it was well enough, fince it appeared to be within the diftrict of Sheerness. Shepherd took nothing by his motion.

THE

WEBB V. MATTHEW.

`HE bail having been rejected, in this action, in which no bail-bond had been taken, the Plaintiff brought efcape againft the Sheriff.

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

Marshall Serjt. on two grounds: 1ft, That the new bail were described in the notice as added, whereas both the former bail 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. Preft, 7 Term Rep. 109.

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

ΤΟΣ. Ι.

the

May 3d.

The Court will not permit a

Defendant justify bail after

an action for an

efcape commenced against the heriff, who

has neglected to

take a bail bond.

1798.

WEBB

ข.

MATTHEW.

the Sheriff's mifconduct fhould not be prevented from defending the action.

The Court faid, 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 confidered in the same light as an application on the part of the Sheriff to ftay proceedings against him in the action for the efcape. That as the Sheriff had neglected to do his duty, he ought not to be relieved, for the Court could not too ftrongly mark his conduct in omitting to follow the directions of the ftatute (a). If there was any reafon for making a private engagement it ought to have been made to the Plaintiff. Bail rejected.

(a) 23 H. 6. c. 9.

May 5th.

Defendant's wife having committed adultery, he left

her in his house with two chil

dren bearing his

name, but with

out making any provifion for her in confequence

of the feparation; the continued in a ftate of adultery; held, that the hufband thould

be liable for ne

ceffaries furnith

ed to her unless it appeared that the Plaintiff knew or ought to have known the circumftances under which the was Living.

A

NORTON V. FAZAN.

SSUMPSIT for neceffaries fold to the Defendant's wife and children.

Some time previous to the delivery of the goods, the Defendant having difcovered that his wife kept up an adulterous intercourfe with another man, feparated himself from her, leaving her in poffeffion of the house which he had inhabited, together with two children bearing his name. In this house she was living in a ftate of adultery, at the period when the goods in queftion were delivered. The Defendant had made no regular provifion for his wife. The cause was tried before Eyre Ch. J. at the Sittings at Westminster in Eafter Term, who was of opinion that if the Plaintiff knew or ought to have known that the separation proceeded from the adultery of the wife, the jury fhould find for the Defendant; if not, that the Plaintiff was entitled to recover. Verdict for the Plaintiff 27. 105.

Clayton Serjt. now moved for a rule calling on the Plaintiff to fhew caufe why the verdict should not be fet afide and a nonfuit be entered. He contended, that whether the Plaintiff had notice of the adulterous intercourfe 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 feparation was notorious, and the adultery committed during the feparation, the Defendant was discharged.

EYRE

EYRE Ch. J. If the Defendant in another action brought againft him by fome other tradefman fhall be able to establish the notoriety of his wife's fituation, he may defend himfelf. But as the cafe ftands at present this woman appears to have been living in a houfe in which fhe 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 intercourfe with another man, but that was not proved to be known to this tradefman. If the Defendant can bring it home to any other tradefman who fhall be in the fame fituation as the prefent Plaintiff, that he did know or ought to have known the circumftances under which the wife was living, the Defendant may perhaps be able to prevent another verdict paffing against him.

BULLER J. Every cafe on the facts is peculiar to itself, and this is fo different from every other cafe which has been decided in Westminster-hall that I confider it as anomalous. The verdict is clearly and ftrictly right. The wife committed adultery for a confiderable time while fhe 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 muft maintain her as before.

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

(a) 1 Lev. 5.

1798.

NORTON

ญ.

FAZAN.

GREEN v. REDSHAW,

THE
HE affidavit to hold to bail in this cafe was entitled "William
Green Plaintiff againft James Redshaw Defendant," but in the
body of the affidavit it was ftated, that James Redshaw, without
adding the word "Defendant," was indebted &c.
A rule nifi for entering a common appearance having been
obtained on the ground of the affidavit being entitled,

Clayton Serjt. now fhewed caufe, and contended that as the affidavit was pofitive 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, faying that it was in confequence of a decifion of this Court that the Court of King's

May 5th.

2 Bof. & Pull 110. 298. If an affidavit to hold to bail is The Court will

entitled, it is bad.

never allow a fupplemental

affidavit except

to explain an ambiguity in the original affidavit.

1798.

GREEN

ย.

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 fupplemental affidavit ; and cited Hollis v. Brandon. (b)

Sed per EYRE Ch. J. The Court will never receive a fupplemental affidavit unlefs to fupply fomething which is ambiguous on the face of the original affidavit ; and which the Court for its own fatisfaction wishes to have explained; and on this ground proceeded the offer of leave to file a fupplemental affidavit in Hollis v. Brandon. But if it were allowed in this cafe, 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,

(a) Vid. Clarke v. Cawthorne, 7 Term. Rep. 321. and Reg. Gen. Trin. 37 Geo. 3. B.R. 7 Term Rep. 454.

(b) Ante, p.36.

Rule abfolute.

May 8th.

not restrain a

Defendant from

pleading the

MADDOCKS v. HOLMES and others.

The Court will SHEPHERD Serjt. having moved for a rule nifi to fet afide a regular interlocutory judgment which had been figned in this cafe for want of a plea, on the terms of paying the cofts, pleading tations on fetting inftanter, taking fhort notice of trial for the Sittings after Term, and giving judgment as of the Term;

Statute of Limi

afide a regular interlocutory

judgment.

Marshall Serjt. faid he was inftructed to oppose this motion in the first inftance unless the Defendants fhould be reftricted from pleading the Statute of Limitations, and cited Willett v. Atterton, 1 Bl. 35. to fhew that the Court never let in that plea where they fet afide a regular judgment. (a)

But the Court faid, that the plea of the Statute of Limitations was not neceffarily unconfcientious, and that of late it had been confidered as a fair plea in the King's Bench (b), though formerly it had been thought otherwife.

Rule abfolute on the terms propofed.

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

(b) Rucker and another v. Hannay Bart. 3 Term Rep. 124.