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1798.

practice of the Court with accuracy, but whose affertion in this case is unsupported by authority, and contradicted by reason. Per Curiam,

Rule discharged. (a)

LE GRIW

CoOKE, ,

(a) In an anonymous case, M. II Ann. the Plaintiff, after a nonfuit, was allowed Cooke's Caf. Prac. C. B.5. an executor De- to take money out of court which had fendant having paid money into court on been paid in on the common rule. But it the common rule, was allowed to take it was there said that if money be paid into out again after a nonfuit; but it was said court on a plea of tender, and Plaintiff that if Defendant had not been executor or takes issue on the tender which is found administrator, the Plaintiff mould have had against him, the Defendant shall have the the money: and accordingly a similar ap- money.

Vid, allo 21 Ed. 4. 25. pl.is. plication in Lane and others v. Wilkinson, T. Co. Litt. 207, a. Harrold v. Clotzvorthy, 13 Geo. I. id. 36., where the Defendant was Cro. Fac. I 26., and Benskin v. Herick, Sigis neither executor nor administrator, was re- 388. where that was held to be the law. fused. And in Elliot v. Callow, Salk.597.

Nov. 200h.

WILLIAMS v. WATERFIELD.

The Court
allowed the De- SHEPHERD Serjt

. having moved to justify bail; Le Blanc Serjt. fendant to justify

objected, that an attachment had already iflued against the bail after an at. Theriff because bail were not put in in time, and that if he now againt the fieriff

, opposed the bail without fuccess, it would not be competent(a) but gave leave to to him afterwards to oppofe setting aside the attachment against the Plaintiff to oppose them the sheriff, whereas if he did not oppose the bail, and the Dewithout preju- fendant should afterwards fucceed in a motion to set aside the dice.

attachment, the Plaintiff might have bad bail.

BULLER J. It was the practice in the King's Bench in these cases, and it seems to me to be the most convenient mode, for the Defendant to move for a rule to fhew cause, why on putting in bail, the proceedings against the sheriff should not be stayed, and to have the bail ready to justify when that rule should be disposed of. But though that may be the better course in future, it muft not affect this case. Per Curiam, Leave given to the Defendant to justify his

bail, and to the Plaintiff to oppose them without prejudice.

(a) But in Boldero v. Gray, Cowp. 769. that he will put in and perfect bail before where the same objection was started to the he can discharge himself, so a similar notice practice then prevailing, of an exception to mould be given in order to stay proceedings bail being a waver of the bail-bond, the on the bail-bond, and then Plaintiff may Court of K. B. resolved, that as the sheriff oppose the bail in court, without its being after he has been ruled mutt give notice any waver.

1798.

Nov. 2ift.

DICKENSON, Executor, 8c. v. BOYNE. SHEPHERD Serjt. moved to make a rule absolute for setting The Court fet

afide a judgment and warrant of attorney, given to secure an and warrant of annuity on the ground that a clause of redemption contained in attorney given to the deed was not inserted in the memorial.

secure an annuity Le Blanc Serjt. on the part of the Plaintiff, admitted the law(a) the memorial,

without cofts, to be againft him, but observed that as this was the case of

because it was executor who could not be aware of the nature of the deeds, it the case of an would be hard to oblige him to pay cofts. And the Court being of that opinion made the

Rule absolute without cofts.

for a defect in

an

executor

(2) Vid. Ex parte Anfell, ante, 62. and the authorities there cited.

ENGLAND V. KERWAN.

Nov. 21 ft.

cation.

BA
AIL having been regularly put in and excepted to, the De- Where bail are

fendant's attorney gave a notice of justification to the Plain- and excepted to, tiff's attorney to the following effect : “ Take notice that J. R. the Defendant

need not describe “ of, sc. will be added to the bail already put in, and that the them in his “ said J. R. and John Binford of whom you have already had notice of justifi“ notice, will on, &c. justify, 8c.” John Binford was fully described when originally put in, though no description was added to his name in this notice.

Shepherd Serjt. opposed the justification, infifting that a defcription of John Binford should have been inserted in the notice.

Le Blanc Serjt. contrà, contended, that when bail are regularly put in, no defcription need be inserted in the notice, and that the Defendant therefore had done all that was requisite in describing the added bail.

The Court finding on application to the officer, that where bail are regularly put in and excepted to, it is not the practice(a) for the Defendant to insert any description in his notice of justification,

Admitted the bail.

(a) i Crompton's, Pr.61. Tidd, P5.138.

1798.

Nov. 22d.

i may be disa

the Lords' act.

The King v. Davis, One, &c. It is no objection to a prisoner be- THE

HE Defendant having been imprisoned under an attachment ing discharged

for non-payment of money to the plaintiff, in a cause of under the Lords' M'Intosh v. Munday, which he had received as attorney, was this ditor is dead. An day brought up to be discharged under the Lords' act. attorney in Runnington Serjt. in opposition to his discharge, ist, produced custody on an attachment for

an affidavit that by accounts of the state of M*Intosh's health, not paying over very lately received from Bath, there was every reason to believe money received by him in the

that he was no longer alive; and urged that if he were dead, course of a suit, there was no one to whom notice could be given according to charged under the provisions of the act; 2dly, he contended, that as the De

fendant was imprisoned by attachment, he was not dischargeThe Court cannot under the able(a) under the statute. words of 37 Geo.3. But the Court over-ruled both objections, saying as to the last, c.8.4.2. moderate the sum to that an attachment for non-payment of money is an execution. (6) he paid to a pri

Runnington then applied to the Court to remand the prisoner ing remanded, on payment of a less fum than 3s. 6d. per week, infifting that but a note must the Court was authorized fo to do, both by the words of 32 Geo. 2. full fum directed c. 28. f. 13., which directs the Court to discharge the prisoner, by that act.

unless the creditor will fign a note “ to pay and allow weekly a not be signed by “ fum not exceeding 2s. 4d.,” and by the case of Hill v. Wadthe creditor's attorney, if his

more, Barnes, 387. ed. 3., where the Court said that they had client be dead. power to moderate the allowance, and remanded the Defendant

upon the Plaintiff's allowing him 6d. per week; he added, that there was strong reason for the Court to exercise their power in this case, where the ground of imprisonment was, that the Defendant had received money as attorney in a cause, and retained it in his own hands when he ought to have paid it over,

The Court rejected the application, being of opinion that the words of the last act (c) which extend the allowance to 3s. 6d. per week, do not leave any discretionary power in the Court,

toner on his be

Such note can.

(@) Sed vid. Rex v. Stokes, Comp. 136., strators, or afligns, infiit upon such prisoner where it was held that a party in cuftody being detained in prison, and thall “ agree upon an attachment for non-payment of costs “ in the manner mentioned in the lift act may be discharged under the Lords' act. “ with respect to the allowance not exceeds Vid. etiam Rex v. Pickerill, 4 T.R.809. “ ing 25.4d. per week, to pay and allow and Rex v. Wilkinson, 7 T.R. 156. « weekly a fum not exceeding 3s. 6d. as

(6) Rex v. Myers, 1 T. R. 265. Bonafous any such Court shall think fit unto such v. Schoole, 4 T. R. 316.

prisoner," to be paid at the times, and (c) 37 Geo. 3. 6.85. §.2. makes it faw- subject to the regulations mentioned in the ful for the Court to discharge the prisoner, last act. unlels the creditor, his executors, admini

12

When

1798.

The King

When the discharge was about to take place, the attorney concerned for MʻIntosh gave a note for the weekly allowance of 35. 6d. figned by himself.

Sed per Buller J. The note must be given by the party in the fuit, though in some cases it may be signed by his attorney; here it has been stated that the party himself is dead. Per Curiam,

Let the prisoner be discharged.

Davis,

HOGAN V. PAGE.

Nov. 23d. I E BLANC Serjt. moved for a rule nife to stay proceedings on Proceedinçs on a a single bond on payment of 105l., together with the costs fingle hond stayed

by the Court on of the action.

payment by the Cockell Serjt. for the Plaintiff

, ftated, that the only question oblivor of princiwas, whether the Plaintiff was entitled to interest on which they wishout interest. wilhed to take the opinion of the Court.

The bond was in this form:

Know all men by these presents, that I R. Page am held and firmly bound unto M. Hogan, master of the ship Cornwallis, in 105l. of good and lawful money of Great Britain, to be paid to the said M. Hogan, his executors, adminiftrators, and afligns, in consideration of being found in a passage by the said M. Hogan, and on the fame ration as the seamen of the said ship, with all medical aslistance during the said voyage to England, for which payment to be well and truly paid, I bind myfelf, my executors, and administrators, firmly by these presents. Sealed, 8c. and dated 13th May, 36 Geo.3.

The Court were clearly of opinion, that no interest ought to be given, and made the

Rule abfolute.(a) (a) Secùs, in the case of a bond condi- terms, nor any day certain for payment extioned for the payment of a leffer fum; on presied. Firquhar, Bart. v. Morris, 7 T. R. wbich interen muit be paid from the day of 124. the date: though no interest be relerved in

1

ROBERTS v. Giddins.

Nov. 23d. CLarton Serjt

. before thewing cause against a rule for staying An affidavit to proceedings on the bail-bond, objected to the affidavit on found a rule for

staying proceedwhich the rule nifi had been obtained, because it was intitled in ings on a bailthe action against the bail , whereas it is the usual practice for these borid, hould be

action against the bail VOL. 1.*

motions

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motions to be made in the original action; which practice, he said, had been adopted in order to save expence to the parties.

Sed per BULLERJ. The action on the bail-bond is depending: then why should not this affidavit beread? Whereindeed, no action against the bail is commenced, as if a motion be made to cancel the bail-bond, the affidavit must be intitled in the original action; for unlessit beintitled in fome action, no perjury can beafligned uponit. Per Curiam,

Let the affidavit be read.

Nov. 24th.

Cox v. Kirchin. Where no point IND

NDEBITATUS assumpfit, for goods fold and delivered, and work has been saved and labour done. at the trial, che Court will not

Plea, General issue. set alide a ver- The cause was tried before Rooke J. at the Wejiminjier fittings dict.com arqueftion in this term, when it appeared, that the Defendant was the wife justice and con- of one Wells who was then living, but that for the last four or science of the cale be with it. five years she had gone by the name of Kitchin, having lived It seems that a during that time as mistress with a person of that name (a); woman living apart from her that the kept an hotel, and that the action was brought by the husband in a Plaintiff as a carpenter, for materials found, and work done, in Itate of adultery, is liable on her” fitting up the hotel. The learned Judge directed the jury, in own contracts,

case they should be of opinion that the Defendant was living in a though the has no separate state of open adultery at the time of the contract made, to find a maintenance. verdict for the Plaintiff, for as the husband under those circum

stances would not then be liable, he thought that the wife must be liable herself (6). A verdict was accordingly found for the Plaintiff. No point was faved for the opinion of the Court.

Williams Serjt. on this day moved for a rule to shew cause why the verdict should not be set aside, and a new trial be had on the authority of Gilchrist v. Brown, 4 T.R.766., where it was de cided on demurrer, that a replication to a plea of coverture was

bad, because it was destitute of the principle on which all the [ 339 ] modern cases had proceeded, where femes coverts had been held

liable; viz. a separate maintenance. » Espin. N. P. (a) In Norwood v. Stevenfon, T. II & v. Scott, 1 Lev. 4., that the wife could never Caf.637.

12 Geo. 2. B. R. Bull. N. P. 136., and in be charged; though they differed as to the Hudson v. Brent, fittings after Hil

. T. liability of the husband.' And in Hatchett 26 Geo.3. coram Lord Mansfield, Esp. N.P. v. Baddeley, 2 Bl. Rep. 1082., Blackstene J. 124., it was held that if a man cohabits with

held, that although the husband were not a woman, allows her to affume his name and bound to pay the debt, it did not follow as passes her to the world as his wife, though a legal consequence that the wife should be in fa&t he is not married to her, yet be is compelled alone : and he was of opinion in liable to her contracts for neceffaries.

that case, that the debt could not be reco(6) It was taken for granted by the vered of either. Judges on both sides in Manby and Another

13

BULLER J.

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