페이지 이미지




was held sufficient that he was in banishment at the time when Lady Belknap's contract was made; and I can see but one principle on which the case could have been decided ; viz. that the rights known to exist in law between husband and wife were not interfered with, by allowing the wife to be taken in execution : as the husband was banished (though it be not stated whether for life or not) the matrimonial rights during his banishment were at leaft fufpended. In later times the cases have gone further. In Sparrow v. Carruthers (a), it was shewn in answer to evidence of coverture that the husband was transported for seven years only, and after that time was expired he had a right to return, and demand the comfort of his wife, even if she were in gaol; yet the husband being abroad and not capable of enjoying the matrimonial rights, it was held that the disability of the wife was suspended. In those cafes the husband was sent out of the country for his crimes, whereas here the husband has voluntarily abandoned his wife, and, for any thing that appears, never was in England, and perhaps never may come here. The wife has traded as a feme fole, has obtained credit as such, and ought to be liable for her debts.

HEATH J. I am of the fame opinion. The cases of banishment and transportation of the husband are directly in point. Besides, it is for the benefit of the feme covert that she should be liable to an action in such a case as this, otherwise she could obtain no credit, and would have no means of gaining her livelihood. The husband perhaps never was in England, and never may be, so that this case is not at all like those which proceeded on the ground of a separate maintenance. ROOKE J. of the same opinion.

Judgment for the Plaintiff. (6)

(a) Cited in Lean v. Shutz, 2 Bl. 1197. by her during her husband's absence from and in Corbett v. Peelnitz, 1 T.R. 7. this country, though at his departure he

(6) Vid. etiam Espin. Caf. N. P.554. proposed returning in a short time, but had Watford v. Duebelle de Pienne, whom Lord in fact been ablent some years. Kenyon ruled to be liable for debes contradied


Nov. 27th.

COCKELZ Serjt. moved for an attachment againft the sheriff of The Court re. Leicestershire, for having made an insufficient return to a fused to grant an

attachment writ of venditioni exponas.

against the

Theriff, because he had returned to a writ of venditioni exponas, that part of the goods levied remained in his hands for want of purchasers.




The Plaintiff having fued out a fi. fa. the Sheriff returned that he had levied to the value of the sum indorfed, but that the goods remained in his hands for want of purchasers; upon which a venditioni exponas having issued, the sheriff' returned, that he had fold a moiety of the goods levied, and that the remainder continued in his hands for want of purchafers. (a)

Cockell urged, that as no other writ could be sent to the sheriff while this venditioni exponas was in force, the goods under this return might remain in his hands for ever.

But the Court was of opinion, that the motion could not be supported, and that if the Plaintiff was diflatisfied with the return, he might set up a purchaser of the goods himself.

Cockell took nothing by his motion.

(a) Vid. Clerk v. Withers, 6 Med. 293. Ali, Cameron et al.v. Reynolds,Cervp.406, 2 Ld. Raym, 1075. S.G., where Holt C. J. where Ld. Mansfield says, that upon a writ says, “ If a heriff seize goods to the value, of venditioni exponas the sheriff mult re" and return it, he is bound to find buyers." “ turn the money into court.”

that is dead,

maica to execute


Adam and Wife, Executrix, v. Kerr. 2 Eaji, 251 3 Camp 282. in debt on bond, D!

EBT on bond. The declaration was in the usual form, arerif one or the at.

ring the bond to have been made and sealed by the Detesting witnesses be dead in the fendant, with a profert accordingly. Plea, non eft factum. other beyond the

The instrument in question was made in Jamaica, and attested procels of the Court, it is suf. by two witnesses, but being produced at the trial before Rooke J. ficient to prove at the Westminster fittings in term, appeared to have no feal, the hand-writing of the witness though a mark of a particular kind had been made with a pen,

in the place where bonds are usually sealed. Evidence was adQu. Whether evidence of a mitted to thew a custom in Jamaica to execute bonds in this custom in ja

manner. One of the attesting witnefles having been proved to honds by fub- be dead, and the other to be refident in Jamaica, the handftituting a mark

writing of the former only was eftablished, and no evidence was with a pen for a feal be admil given of the hand-writing of the obligor. Verdict for the Plainfible in support of tiff, subject to the opinion of the Court. a declaration on a bond lealed, Heywood Serjt. moved for a rule to thew cause why the verdict c.?

should not be fet aside and a nonfuit be entered; and insisted, ift, that the hand-writing either of the witness living in Jamaica, or of the obligor, should have been proved; 2dly, that the evidence of the custom in Jamaica should not have been admitted.

BULLER J. On the last ground there is no objection to the rule to shew cause being granted, but I am clear there is nothing in the first point. Where a witness is dead, the course is to prove his hand-writing. In this case one of the attefting witnesses was


[ocr errors]




dead, and the other was beyond the reach of the process of the Court; the best evidence, therefore, which could be obtained wasgiven(a). Thehand-writing of the obligor need not be proved: thatof the attesting witness, when proved, is evidence of everything on the face of the paper; which imports to be sealed by the party.

The Court accordingly granted a rule to shew cause on the last ground, but recommended the Defendant to accede to the terms of the Plaintiffs taking judgment without costs.

The cafe being called on this day, Heywood for the Defendant assented to the proposal made by the Court, and on those terms the

Rule was discharged. (2) Vid. Coghlan v. Willianfon, Doug.93. Trompousky, 7 T. R. 265. and Wallis v. Homes v. Pontin, Peake N. P. 100. Cooper Delancy, ibid.n. (-). v. Marsden, Espin, Caf. N. P. 2. Barnes v.


Nov. 28th. HE Defendant was arrested on the 8th of September 1797 by If a Defendant THE process out of the Court of King's Bench; on the 5th of be supersedeable

for want of judgFebruary 1798 he was charged with a declaration; on the 8th of

ment being enthe same month he was removed by habeas corpus to the Fleet; tered up in time, judgment (which went by default) was not entered up till the difcharged, the 26th July, in the Trinity vacation following, and the Defendant cannot be dewas therefore fuperfedeable, according to the practice of both action on the Courts: on this ground a fummons for the 311t October was taken judgment. out before Lord Kenyon, for the Plaintiff to shew cause why the Defendant should not be discharged out of the custody ofthe Warden of the Fleet; this order, at the particular request of the Plaintiff's attorney, ftood over till the 5th November ; but between the 31ft October and the 5th November the Defendant was charged with a declaration at the suit of the Plaintiff in an action on the judgment. The Plaintiff's attorney not attending to shew cause on the 5th November, an order was made for a fuperfedeas

to i ffue.

Le Blanc Serjt. this day shewed cause against a rule nisi for difcharging the Defendant, in the action on the judgment, out of the cuftody of the Warden of the Fleet, on his entering a common appearance, and contended that the present application was not warranted by the rulemade in Hil.8Geo.2. (a), as that only extends to

(a) Ordered, that in: all cases where a wherein such prisoner was so discharged, or prisoner in the Fleet or other gaol or prison, ordered to be discharged, that a common is discharged or ordered to be discharged by appearance shall be accepted for the Defuperfedeas for want of prosecution, and fendant in such action of debe upon judge such prisoner be afterwards arrested or de

Cooke's Rules and Orders, C. B. tained in custody, by action of debt brought Imp. Pras. C. B. 173. ed. 4. upon judgment obtained in the cause






cases where the prisoner is actually discharged or ordered to be discharged before he is detained in an action on the judgment.

Shepherd Serjt. in support of the rule.

Heath and Rooke Js. (abfente Buller J.) were of opinion that the actual discharge of a prisoner relates back to the time when he has a right to be discharged, viz. to the time when he is supersedeable, and that the practice of the Court was with the Defendant, and accordingly made the

Rule absolute. (a)

(a) Vid. Foy v. Perey, T. 8 Geo. 3. C. B. Rofe v. Cbrifffield, iT. R. 591. and The eit. Jer Buller J. IT.R. 592. contrà in London Afurance Company v. Perkins, cit. B. R. Hutchins v. Kenrick, 2 Burr. 1048.


HEREAS the Right Honourable the Lord High Chancellor

hath been pleased, by an order bearing date the 12th day of July last, to direct that from and after such day no writ of Dedimus Poteflaiem, to be executed in England, fhall issue under the Great Seal, directed to any persons except the Judges, Serjeants at Law, Barristers of five years standing, or Solicitors or Attorneys of fome of the Courts in Wesiminster-Hall, the Judges of the Court of Session and Exchequer, Advocates and Clerks to the Signet of five years standing, in Scotland : It is ordered, that from and after the last day of this Term, no Common Recovery or Fine shall be suffered to pass, unless the taking of the Warrants of Attorney for suffering any Common Recovery or Caption of any Fine be before one of the Justices or Barons of His Majesty's Courts of Record in Westminster-Hall, or one of the Serjeants at Law, unless an affidavit be made and filed, stating that the Commissioners taking the same are, to the best of the Defendant's information and belief, either Barristers of five years standing, or Solicitors or Attornies of some of the Courts in Westminster-Hall, the Judges of the Court of Seslion and Exchequer, or Advocates and Clerks to the Signet of five years Itanding, in Scotland.


Lord Chief Justice Eyre was abfent during the whole of this Term, from indifpofition.


[blocks in formation]

In the Thirty-ninth Year of the Reign of GEORGE III.

[ocr errors][merged small][merged small]

THIS "HIS was a motion to set aside the writ of inquiry executed in If notice of a this case for irregularity.

writ of inquiry

to be executed Judgment having been figned for want of a plea, notice was at a particular given that a writ of inquiry would be executed at the Second-hour and place,

be con inued, aries' office in Lothbury, between the hours of eleven and one on the notice of a particular day. This notice was afterwards continued to a need not exprels subsequent day, but in the notice of continuance no mention any hour or was made of the hour or place at which the writ of inquiry would

place. be executed. The Defendant did not attend; and a verdict was found for il. 175.

Shepherd Serjt. in Thewing cause contended, that the notice of continuance was regular, as it necessarily referred to the time and place mentioned in the original notice, and added, that it was notorious that writs of inquiry always were executed between the hours of eleven and one, unless the convenience of both parties particularly required that it should be otherwise. He also relied on the circumftance of this being a small debt due to a tradesman, and that the Defendant having been fummoned to the Court of


« 이전계속 »