BULLER J. This cafe comes before the Court under very different circumstances from thofe of the cafe cited. The question there arofe on demurrer, whereas this is a motion to fet afide averdict. Motions for new trials are governed by the difcretion of the Court. Where the Judge at Nifi Prius has thought fit to fave a point; the Court has been in the habit of confidering itself in the fituation of a judge, at the time of the objection raifed. But this cafe comes before us without any point faved, and therefore we muft look to the general juftice of the cafe before we interpose by granting a new trial; nor is it neceffary that we should nicely examine whether the Defendant be strictly liable in point of law. The leading reported decifion on the fubject of granting new trials is that of the Dutchefs of Mazarine (a). There can be no doubt but that was the case of a verdict against law: yet the Court said, that as the juftice and confcience of the cafe were clearly with the verdict, they would not interpofe (b). Here it is perfectly clear, that the husband was not liable: that point was folemnly decided in the Court of King's Bench in a cafe which was tried before me at Taunton (c); there it appeared that the wife had been turned out of doors by her husband, and afterwards committed adultery, but, before the cause of action accrued, had ceafed to live in a state of adultery, and had offered to return; and the Court held, that in confequence of the woman having once gone off with an adulterer, the hufband was discharged for ever. Here therefore the husband is not liable; and if the wife be not, fhe ftands in a moft miferable condition. How is the to find the means of fupporting herself? How is the to procure even a joint of meat for her daily fubfiftence? She can obtain no credit, unlefs fhe be liable for her debt: her fituation would be melancholy in the extreme. But whether the be ftrictly liable or not, it appears that she has (a) 1 Salk. 116. 2 Salk. 646. (6) Vid. etiam Smith v. Bramfton; Smith v. Frampton: Anonymous, Paf. 8 Will. 3. B.R. and Smith v. Page, 2 Salk.644. Sparks v. Spicer, 2 Salk. 648. Dunkly v. Wade, 2 Salk. 653. Goflin v. Willcock, C. B. 2Wilf. 306. Sampfon v. Appleyard, C. B. 3 Wilf. 272. Allen and Another v. Sir John Pefball Bart. 2 Black. 1177. Doe v. Williams, Cowp.622. Farewell v. Cboffey and Others, 1 Barr.53. Dr. Burton v. Thompson, 2Barr. 664. Foxcroft v. Duke of Devonshire, 2 Burr. 936. Edmondfon v. Machell, 2 T. R. 4. Wilkinfen v. Payne, 4T. R. 468.-But if the Court had confidered the verdict in the prefent cafe to be clearly wrong in point of 7 2 (c) Covier v. Hancock, 6 T.R. 603. 1798. Cox V. KITCHIN. 1798. Cox v. KITCHIN. lived as a feme fole, that fhe has reprefented herself as fuch, and has obtained credit under that character. The defence therefore is dishonest and unconscientious, and on that ground I think that the Court ought not to interpose. HEATH J. On the laft point I agree with my Brother Buller, viz. that as the Defendant has lived and contracted as a feme fole fhe ought to be liable for her debts. ROOKE J. I am of the fame opinion. Williams took nothing by his motion. (a) (a) Vid. De Gaillen v. L'Aigle, poft, Nov. 27th, and the cafes there cited, 357 Nov. 24th. 3 Taun. 12. Plaintiff was em LLOYD V. JOHNSON. ployed to wash NDEBITATUS affumpfit for work and labour done, and on the common money counts. Plea, Non affumpfit. clothes for Defendant who was a prostitute, knowing her to be fuch; and held that the ufe to which the clothes might be applied, could not bar Plaintiff of an action for work and labour. At the trial before Rooke J. at the Westminfter fittings in this term, it appeared by the evidence of a fervant maid of the Defendant, (who was alfo a daughter of the Plaintiff,) that the Defendant was a prostitute, and that this action was brought to recover the amount of a bill delivered for washing done by the Plaintiff's wife. By the bill of particulars it was fhewn that the articles washed, confifted principally of expenfive dreffes, and that there were alfo fome gentlemen's night-caps; the witnefs fwore that the former were for the purpose of enabling the Defendant to appear at public places, and that the latter were worn by thofe perfons who flept with her miftrefs. She alfo proved that the Plaintiff and his wife had full knowledge of the Defendant's fituation, and of the purposes to which the articles in question were applied. The learned Judge, on an objection taken to the Plaintiff's recovery under these circumstances, was of opinion, that no fuch immorality in the contract on the part of the Plaintiff had been proved, as ought to defeat the action. Verdict for the Plaintiff. Cockell Serjt. now moved for a rule to fhew cause why the verdict should not be fet afide and a nonfuit be entered, and cited Crifp v. Churchill, E. 34 Geo. 3. coram Eyre Ch. J., where in an action for use and occupation of a lodging, it being fet up that the Defendant was an infant and a prostitute, the Chief Juftice was of opinion that thofe circumftances were no bar to the action, as both an infant and a proftitute must have a lodging; but it being fhewn fhewn that the lodging was let to the Defendant for purposes of prostitution, and with a knowledge on the part of the Plaintiff of that fact, he held that the action was not maintainable. (a) BULLER J. What do you mean by the expreffion of clothes used for the purposes of proftitution? This unfortunate woman muft have clean linen, and it is impoffible for the Court to take into confideration which of these articles were used by the Defendant to an improper purpose, and which were not. As to the cafe before my Lord Chief Juftice, I suppose the lodgings were hired for the exprefs purpose of enabling two perfons to meet there, which would certainly be unlawful. Here the Plaintiff's wife was employed generally to wafh the Defendant's linen, and the ufe which the Defendant made of it cannot affect the contract. HEATH and ROOKE, Juftices, being of the fame opinion, Cockell took nothing by his motion. (e) Vid. etiam Girarday v. Richardfon, was ruled by Lord Kenyon, at the WeflminEfpin. Caf. N. P. 13., where the same point fer fittings after Effer teim, 33 Geo. 3. T WHITE V. DENT. $798. LLOYD บ. JOHNSON. Nov. 24th. 8 T.R.465. Plaintiff cannot fign judgment for want of a plea, without de HE Plaintiff having filed his declaration, the Defendant appeared, but never took the declaration out of the office: when the time for pleading was out, the Plaintiff figned judgment without having demanded a plea. A rule nifi having been obtained to fet afide this judgment for dant has not tairregularity, manding one; though Defen ken the declaration out of the Clayton Serjt. now fhewed caufe, and contended that if the office. Defendant does not take the declaration out of the office no demand of a plea need be made, for if the Defendant pleads without having taken the declaration out of the office, his plea is a nullity. (a) Shepherd Serjt. contrà urged, that the Defendant is not bound to take the declaration out of the office till he actually pleads. The Court, on inquiry of the officers as to the practice, having found a difference of opinion, faid, that although the Defendant muft take the declaration out of the office before he pleads, yet that as he may take it out the very hour before he pleads, the Plaintiff ought not to fign judgment without demanding a plea. Rule abfolute without cofts. (b) 1798. Nov. 24th. Poft 482. n. 2 New Rep. 130 and return of a capids, yet it is amendable. If a capias per continuance be tefie'd on the fame day as the original capias, a new original capias may be fued out DAVIS, one, &c. Affignee of the Sheriff, v. OWEN and THOMAS. AN attachment of privilege at the fuit of the Plaintiff, return Α able on the Morrow of All Souls, having iffued against the Defendant Owen and one Michael Hughes, Owen on the 8th November put in bail with the Filazer, and immediately gave the Plaintiff notice thereof. Hughes left the kingdom. The Plaintiff finding that the Defendant Owen had by miftake put in his bail with the Filazer inftead of the Prothonotary (with whom in attachments of privilege bail fhould be put in) waited till the expiration of the time for perfecting bail, then took an affignment of the bail-bond, and fued out a capias ad refpondendum upon it against the prefent Defendants, tefte'd the 6th November, returnable the 18th November, with a copy of which the Defendant Thomas was ferved: but Owen not having been ferved with it, the Plaintiff fued out a capias per continuance, alfo tefte'd 6th November, with a copy of which Owen was ferved. A notice was delivered to the Defendant Thomas of a declaration againft of an irregularity him only. On the 20th November bail in the original action were put in for the Defendant Owen with the Prothonotary. to warrant it, though fuch new original bear tefte before the caule of action ac crued. Taking out a fuminons ons before a Judge to stay proc edings on the bailbond, is a waver in the notice of declaration. A rule nifi was obtained on a former day to fet afide the proceedings on the bail-bond for irregularity, on three grounds: Ift, Because there were not fifteen days between the teste and return of the original capias: 2dly, Because the capias per continuance was tefte'd on the fame day as the original capias, whereas it fhould have been tefte'd on the return-day of fuch capias: 3dly, Because the writ was joint against Owen and Thomas, and the notice of declaration feveral against Thomas only. Marshall Serjt. this day fhewed caufe, and contended, ift, that the capias was amendable (a), Carty v. Afhley, C.B. 3 Wilf.454. 2 Bl.918. S.C. Bourchier v. Wittle, 1 H. Bl. 291. 2dly, That a capias per continuance may bear tefte on any day; or that if neceffary a new original capias may be sued out, bearing teste such a day as will warrant the capias per continuance, in the fame manner as an original capias ad fatisfaciendum may be fued out, where a Defendant has been taken on a capias ad fatisfaciendum iffued into (a) Vide tamen Williams v. Faulkner, Barnes, 409. ed. 3. Atkinfon v. Taylor, 2 Wilf.117. Barnes, 427. S. C. Holt v. Hawkes, Barnes, 420. ed. 3. and Whale v. a differ a different county from that in which the action is brought (a). 3dly, That if there were any irregularity in the notice of declaration, the Defendant had waived it by taking out a summons before a Judge to ftay proceedings on the bail-bond, on the ufual terms. He stated that the Plaintiff would not have taken an affignment of the bail-bond for the Defendant's mistake in putting in bail, but to prevent the expence of being obliged to proceed to outlawry against Hughes, who had fled the kingdom. Le Blanc Serjt. contrà, infifted, 1ft, that the power of amendment being difcretionary in the Court, they would not exercise that power in favour of the Plaintiff in a cafe of fuch fharp practice as the prefent. 2dly, That it is abfurd for the capias per continuance to bear tefte on the fame day as the original command, and that if fuch a new original capias as was fuggefted by the other fide were fued out, it would bear tefte before the caufe of action accrued. 3dly, That no irregularities, which could be taken advantage of when the parties went before the Judge, were waved by that application, the object of which was the fame as that now before the Court. BULLER J. The first objection is of no weight, for it clearly appears by authorities that the Court will alter a capias fo as to make fifteen days between the tefte and return. Here a mistake was committed by the Defendant in putting in his bail; and in ftrictnefs I cannot fay that the affignment of the bail-bond was irregular, but as the Plaintiff had notice that the bail were put in, I think it was such sharp practice on his part, as to justify the Court in finding fome means to prevent him from getting his cofts by it. The fecond objection is to the capias per continuance, but an original capias may be fued out to warrant that; and it will be no objection to fuch original capias that it will bear tefte before the cause of action accrued (b). I have often talked with the late Mr. Juftice Gould on this fubject, who went great lengths in amending writs of capias, and his reafon was, that as a writ of capias never appears on the record, it is of no confequence whether it bear tefte before or after the cause of action accrued; and if a latitat may be fued out (as it certainly (c) may) before the cause of action accrues, and a capias may not, the courts of King's Bench and Common Pleas are not on an equal footing. As to the third objection, it (a) Shaw v. Maxwell, 6 T.R. 450. (6) 1 Crompton's Pr. 25. Imp. P.R.C.B. 154. ed. 4. Sed vide I Sellon's Pr.83. ed. 2. 2 4 (a) Fobnfon and Another v. Smith, 2 Burr. 962,7. Fofter v. Bonner, Cowp. 454. and Beft v. Wilding, 7 T.R. 4. has 1798. DAVIS V. OWEN. |