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1798.

Cox

BULLER J. This case comes before the Court under

very

different circumstances from those of the case cited. The question therearofe on demurrer, whereas this is a motion to set aside averdict. Motions for new trials are governed by the discretion of the Court. Where the Judge at Nifi Prius has thought fit to save a point; the Court has been in the habit of considering itself in the situation of a judge, at the time of the objection raised. But this case comes before us without any point saved, and therefore we must look to the general justice of the case before we interpose by granting a new trial; nor is it necessary that we should nicely examine whether the Defendant be strictly liable in point of law. The leading reported decision on the subject of granting newtrials is that of the Dutchess 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 justice and confcience of the case were clearly with the'verdict, they would not interpose(6). 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 case 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 ceased to live in a state of adultery, and had offered to return; and the Court held, that in consequence of the woman having once gone off with an adulterer, the husband was discharged for ever. Here therefore the husband is not liable; and if the wise be not, the stands in a moft miserable condition. How is the to find the means of fupporting herself? How is she to procure even a joint of meat for her daily fubfiftence? She can obtain no credit, unless the be liable for her debt: her situation would be melancholy in the extreme. But whether she be ftri&tly liable or not, it appears that she has

KITCHIN.

(a) 1 Salk. 116. 2 Salk. 646.

present care to be clearly wrong in point of 16) Vid. etiam Smith v. Brampton; Smith. Is; Qu. whether a new trial would not v. Frampton : Anonymous, Pas 8 Will. 3. have been granted? For in Wilson v Rafall, B.R. and Smitbv. Page, 2 Salk.644. Sparks 4 T.R. 753., it was taid by the Court, thac v. Spicer, 2 Salk. 648. Dunkly v. Wode, there was no instance in which a new triai 2 Salk. 653. Goslin v. Willeock, C.B. 2Will. had been refuled, where the veritiet had

pro306. Sampson v. Appleyard, C. B. 3 Will. ceeded upon the mistake or misdirection of 272. Allen and Anoiber v. Sir John Pesoall the Judge. Allo Calcraftv. Gibbs, 57.R.20. Bart. 2 Black. 1177. Doe v. Williams, where Lord Kenyon said, Where there is Cowp.622. Farewell v. Cbaffy and Others, any ground of objection to the liw delivered 1 Burr.53. Dr. Burtonv. Thompson, 2 Barr. by the Judge, on which the verdict has pro664. Foxcroft v. Duke of Devonshire, 2 Burr. ceeded, if such objection be well founded, 936. Edmondjon v. Macheli, 2T.R. 4. it is immaterial what the nature of the Wilkinson v. Payne, 41. R. 468.—But if caufe is. the Court had confidered the verdict in the (6) Corier v. Hancock, 6 T.R.603. z 2

lived

1798.

Cor

KITCHIN.

lived as a feme fole, that she has represented herself as such, 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 last point I agree with my Brother Buller, viz. that as the Defendant has lived and contracted as a feme fole The ought to he liable for her debts.

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

(a) Vid. De Gaillon v. L'Aigle, pof, Nov. 27th, and the cases there cited, 357.

Nov. 24th.

LLOYD V. Johnson. 3 Taun. 12. Plaintiff was em

I

NDEBITATus affumpfit for work and labour done, and on the ployed to wash clothes for De

common money counts. Plea, Non assumpsit. fendant who was

At the trial before Rooke J. at the Westminster fittings in this a prostitute, knowing her to

term, it appeared by the evidence of a servant maid of the Debe such; and fendant, (who was also a daughter of the Plaintiff,) that the Deheld that the use fendant was a prostitute, and that this action was brought to clothes might be recover the amount of a bill delivered for washing done by the applied, could not Plaintiff's wife. By the bill of particulars it was thewn that the an action for articles washed, consisted principally of expensive dresses, and that work and labour. there were also fome gentlemen's night-caps; the witness swore

that the former were for the purpose of enabling the Defendant to appear at public places, and that the latter were worn by those persons who flept with her mistress. She also proved that the Plaintiff and his wife had full knowledge of the Defendant's situation, 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 such immorality in the contract on the part of the Plaintiff had been proved, as ought to defeat the action. Verdiet for the Plaintiff.

Cockell Serjt. now moved for a rule to thew cause why the verdict should not be set asideandanonsuit be entered, and cited Crisp v. Churchill, E. 34 Geo. 3. coram Eyre Ch. J., where in an action for use and occupation of a lodging, it being set up that the Defendant was an infant and a prostitute, the Chief Justice was of opinion that those circumstances were no bar to the action, as both an infant and a proftitute must have a lodging; but it being

thewn

1798.

LLOYD

JOHN50X

Thewn 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 expression of clothes used for the purposes of prostitution ? This unfortunate woman must have clean linen, and it is impossible for the Court to take into consideration which of these articles were used by the Defendant to an improper purpose, and which were not. As to the case before my Lord Chief Justice, I suppose the lodgings were hired for the express purpose of enabling two persons to meet there, which would certainly be unlawful. Here the plaintiff's wife was employed generally to wash the Defendant's linen, and the use which the Defendant made of it cannot affect the contract.

Heath and Rooke, Justices, being of the same opinion,
Cockell took nothing by his motion.
(a) Vid. etiam Girarday v. Richardfon, was ruled by Lord Kongen, at the Wilmin-
Espin. Caf. N. P.13., where the lame point fer fittings after Efter teim, 33 Geo. 3.

WHITE v. Dent.

Nov. 24th.
& T.R.463.
2 Bof. & Pull.
418.

for want of a

ken the declara. tion out of the

peared, but never took the declaration out of the office : sign judgment when the time for pleading was out, the Plaintiff figned judg- plea, without dement without having demanded a plea.

manding one;

though Defen. A rule nis having been obtained to set aside this judgment for dant has not tairregularity,

Clayton Serjt. now shewed cause, 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 sign judgment without demanding a plea.

Rule absolute without cofts. (6) (a) R. T. 12 W. 3. B.R. R. M. 10 G.2. (6) Vid. Nott v. Oldfield, B.R. I Wilf. B.R. Kecling v. Newton, B.R. 1 Will, 173. 194.

DAVIS,

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1798.

Nov. 24th. Pof 482. n. Davis, one, fc. Assignee of the Sheriff, v. Owen and 2 Bof.6 Pul.

THOMAS. 236. 2 New Rep.13% Though there

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N attachment of privilege at the suit of the Plaintiff, returnbe not 15 days able on the Morrow of All Souls, having issued againft the between the tefte and return of a Defendant Owen and one Michael Hughes, Owen on the 8th Nocapids, yet it is vember put in bail with the Filazer, and immediately gave the amendable. If a capias per con

Plaintiff notice thereof. Hughes left the kingdom. The Plaintiff tinuance be tefie'd finding that the Defendant Oxen had by mistake put in his bail on the same day as the ori inal with the Filazer instead of the Prothonotary (with whom in atcapias, a new

tachments of privilege bail should be put in) waited till the expioriginal capias may be sued out ration of the time for perfecting bail, then took an assignment to warrart it, of the bail-bond, and sued out a capias ad refpondendum upon it though Tuch new original bear tefte against the present Defendants, teste'd the 6th November, returnbefore the caule able the 18th November, with a copy of which the Defendant crued. Taking Thomas was served: but Owen not having been served with it, out a fum'nons

the Plaintiff sued out a capias per continuance, also teste'd 6th before a Judge to stay proc. ed- November, with a copy of which Owen was served. A notice ings on the bail

was delivered to the Defendant Thomas of a declaration against bond, is a waver of an irregularity him only. On the 20th November bail in the original action in the notice of declaration.

were put in for the Defendant Owen with the Prothonotary.

A rule nisi was obtained on a former day to set aside 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 teste'd on the same day as the original capias, whereas it should have been tested on the return-day of such capias : 3dly, Because the writ was joint against Owen and Thomas, and the notice of declaration several against Thomas only:

Marshall Serjt. this day shewed cause, and contended, ift, that the capias was amendable (a), Carty v. Alley, C. B. 3 WiY: 454. 2 Bl.918. S.C. Bourchier v. Wittle, 1 H. Bl. 291. 2dly, That a capias per continuance may bear teste on any day; or that if necefsary a new original capias may be sued out, bearing teste such a day as will warrant the capias per continuance, in the same manner as an original capias ad fatisfaciendum may be sued out, where a Defendant has been taken on a capias ad fatisfaciendum iffued into

(a) Vide tamen Williams v. Faulkner, Hawkes, Barnes, 420. ed. 3. and Wbale v. Barnes, 409. ed. 3. Atkinson v. Taylor, Fuller, i H. Bl. 222. 2 Wilf.117. Barnes, 427. S.C. Holt v.

a differ(a) Sbaw v. Maxwell, 6 T.R.450. (c) Johnson and Another v. Smitb, 2 Burr.

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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 fummons before a Judge to stay proceedings on the bail-bond, on the usual 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, insisted, ift, that the power of amendment being discretionary in the Court, they would not exercise that power in favour of the Plaintiff in a case of such sharp practice as the present. 2dly, That it is abfurd for the capias per continuance to bear teste on the same day as the original command, and that if such a new original capias as was suggested by the other side were sued out, it would bear teste before the cause 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 same 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 so as to make fifteen days between the tesie and return. Here a mistake was committed by the Defendant in putting in his bail; and in strictness I cannot say that the assignment 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 costs by it. The second objection is to the capias per continuance, but an original capias may be sued out to warrant that; and it will be no objection to such original capias that it will bear teste before the cause of action accrued (6). I have often talked with the late Mr. Justice Gould on this subject, who went great lengths in amending writs of capias, and his reason was, that as a writ of capias never appears on the record, it is of no consequence whether it bear teste 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

6) i Crompton's Pr. 25. Imp. P.R.C.B. 962,7. Foter v. Bonner, Cowp. 454. and 154. ed. 4.

Sed vide i Selion's Pr.83. Beft v. Wilding, 7 T.R. 4.

ed. 2.

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