1798. V. L'AIGLE. was held fufficient that he was in banishment at the time when Lady Belknap's contract was made; and I can fee but one principle on which the cafe could have been decided; viz. that the DE GAILLON rights known to exift in law between hufband and wife were not interfered with, by allowing the wife to be taken in execution: as the husband was banished (though it be not ftated whether for life or not) the matrimonial rights during his banifhment were at leaft fufpended. In later times the cafes have gone further. In Sparrow v. Carruthers (a), it was fhewn in anfwer 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 fhe 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 fufpended. In thofe cafes the hufband was fent 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 fuch, and ought to be liable for her debts. HEATH J. I am of the fame opinion. The cafes of banishment and transportation of the hufband are directly in point. Befides, it is for the benefit of the feme covert that she should be liable to an action in fuch a cafe as this, otherwife fhe could obtain no credit, and would have no means of gaining her livelihood. The husband perhaps never was in England, and never may be, fo that this cafe is not at all like those which proceeded on the ground of a feparate maintenance. ROOKE J. of the fame opinion. (a) Cited in Lean v. Shutz, 2 Bl. 1197. and in Corbett v. Peelnitz, 1 T.R. 7.“ (b) Vid. etiam Efpin. Caf. N. P. 554. Watford v. Ducheffe de Pienne, whom Lord Kenyon ruled to be liable for debts contracted Judgment for the Plaintiff. (6) by her during her husband's abfence from COCKE LEADER V. DANVERS. Nov. 27th. CKELL Serjt. moved for an attachment against the sheriff of The Court reLeicestershire, for having made an infufficient return to a fufed to grant an writ of venditioni exponas. attachment against the fheriff, becaufe he had returned to a writ of venditioni exponas, that part of the goods levied remained in his hands for want of purchasers. AA 4 1798. LEADER V. DANVERS. The Plaintiff having fued out a fi. fa. the fheriff returned that he had levied to the value of the fum indorfed, but that the goods remained in his hands for want of purchafers; upon which a venditioni exponas having iffued, the fheriff 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 fent to the fheriff 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 fupported, and that if the Plaintiff was diffatisfied with the return, he might fet up a purchafer of the goods himself. Cockell took nothing by his motion. (a) Vid. Clerk v. Withers, 6 Med. 293. 2 Ld. Raym, 1075. S. G., where Holt C. J. fays, "If a theriff feize goods to the value, "and return it, he is bound to find buyers." All, Cameron et al. v. Reynolds, Cowp. 406, where Ld. Mansfield says, that upon a writ of venditioni exponas the sheriff must return the money into court." 66 Nov. 27th. 2 Eaft, 251. 3 Camp 282. in debt on bond, if one of the attefting witnesses be dead and the other beyond the process of the Court, it is fuf. ficient to prove maica to execute bonds by fub ftituting a mark with a pen for a feal be admiffible in fupport of a declaration on a bond fealed, Ve.? ADAM and Wife, Executrix, v. Kerr. DEBT on bond. The declaration was in the ufual form, averring the bond to have been made and fcaled by the Defendant, with a profert accordingly. Plea, non eft factum. The inftrument in question was made in Jamaica, and attefted by two witneffes, but being produced at the trial before Rooke J. at the Weftminster fittings in term, appeared to have no feal, though a mark of a particular kind had been made with a pen, in the place where bonds are ufually fealed. Evidence was admitted to fhew a cuftom in Jamaica to execute bonds in this manner. One of the attesting witneffes having been proved to be dead, and the other to be refident in Jamaica, the handwriting of the former only was eftablifhed, and no evidence was given of the hand-writing of the obligor. Verdict for the Plaintiff, fubject to the opinion of the Court. Heywood Serjt. moved for a rule to fhew caufe why the verdict fhould not be fet afide and a nonfuit be entered; and infifted, ift, that the hand-writing either of the witness living in Jamaica, or of the obligor, fhould have been proved; 2dly, that the evidence of the cuftom in Jamaica fhould not have been admitted. BULLER J. On the laft ground there is no objection to the rule to fhew caufe being granted, but I am clear there is nothing in the first point. Where a witness is dead, the courfe is to prove his hand-writing. In this cafe one of the attefting witneffes was dead, dead, and the other was beyond the reach of the process of the Court; the beft evidence, therefore, which could be obtained was given (a). The hand-writing of the obligor need not be proved: that of the attefting witnefs, when proved, is evidence of every thing on the face of the paper; which imports to be fealed by the party. The Court accordingly granted a rule to fhew caufe on the last ground, but recommended the Defendant to accede to the terms of the Plaintiffs taking judgment without cofts. The cafe being called on this day, Heywood for the Defendant affented to the propofal made by the Court, and on those terms the Rule was discharged. () Vid. Coghlan v. Williamfon, Doug. 93. Holmes v. Pontin, Peake N. P. 100. Cooper v. Marfden, Efpin. Caf. N. P. 2. Barnes v. Trompoufey, 7 T. R. 265. and Wallis v. PIERSON V. GOODWIN. If Nov. 28th. a Defendant be fuperfedeable for want of judgment being en tered up in time, but not actually dfcharged, he cannot be deaction on the tained in an Defendant was arrested on the 8th of September 1797 by ΤΗΣ process out of the Court of King's Bench; on the 5th of February 1798 he was charged with a declaration; on the 8th of the fame month he was removed by habeas corpus to the Fleet; judgment (which went by default) was not entered up till the 26th July, in the Trinity vacation following, and the Defendant was therefore fuperfedeable, according to the practice of both Courts: on this ground a fummons for the 31st October was taken judgment. out before Lord Kenyon, for the Plaintiff to fhew cause why the Defendant should not be difcharged out of the cuftody of the Warden of the Fleet; this order, at the particular requeft 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 fuit of the Plaintiff in an action on the judgment. The Plaintiff's attorney not attending to fhew caufe on the 5th November, an order was made for a fuperfedeas to iffue. Le Blanc Serjt. this day fhewed cause against a rule nifi for dif charging 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 prefent application was not warranted by the rule made in Hil. 8 Geo.2. (a), as that only extends to (a) Ordered, that in all cafes where a wherein fuch prifoner was fo difcharged, or cafes 1798. PIERSON V. GOODWIN. cafes where the prifoner is actually difcharged or ordered to be difcharged before he is detained in an action on the judgment. Shepherd Serjt. in fupport of the rule. HEATH and ROOKE J. (abfente Buller J.) were of opinion that the actual difcharge of a prifoner relates back to the time when he has a right to be difcharged, viz. to the time when he is fuperfedeable, and that the practice of the Court was with the Defendant, and accordingly made the (a) Vid. Foy v. Percy, T. 8 Geo. 3. C. B. eit. per Buller J. 1T.R. 592. contrà in B. R. Hutchins v. Kenrick, 2 Burr. 1048. Rule abfolute. (a) Rofe v. Chriffield, T. R. 591. and The London Affurance Company v. Perkins, cit. ibid. MICHAELMAS TERM, 39 Geo. III. HEREAS the Right Honourable the Lord High Chancellor hath been pleafed, by an order bearing date the 12th day of July laft, to direct that from and after fuch day no writ of Dedimus Poteftatem, to be executed in England, fhall iffue under the Great Seal, directed to any perfons except the Judges, Serjeants at Law, Barrifters of five years ftanding, or Solicitors or Attorneys of fome of the Courts in Wefiminfier-Hall, the Judges of the Court of Seffion and Exchequer, Advocates and Clerks to the Signet of five years ftanding, in Scotland: It is ordered, that from and after the laft day of this Term, no Common Recovery or Fine fhall be fuffered to pafs, unlefs the taking of the Warrants of Attorney for fuffering any Common Recovery or Caption of any Fine be before one of the Juftices or Barons of His Majefty's Courts of Record in Westminster-Hall, or one of the Serjeants at Law, unlefs an affidavit be made and filed, ftating that the Commiffioners taking the fame are, to the beft of the Defendant's information and belief, either Barrifters of five years ftanding, or Solicitors or Attornies of fome of the Courts in Westminster-Hall, the Judges of the Court of Seffion and Exchequer, or Advocates and Clerks to the Signet of five years standing, in Scotland. F. BULLER J. HEATH. G. ROOKE. Lord Chief Juftice Eyre was abfent during the whole of this Term, from indisposition. THE END OF MICHAELMAS TERM. CASE S ARGUED AND DETERMINED 1799. IN THE COURT OF COMMON PLEAS IN Hilary Term, In the Thirty-ninth Year of the Reign of GEORGE III. JONES v. CHUNE, One, &c. Jan. 25th. THIS was a motion to fet afide the writ of inquiry executed in If notice of a this cafe for irregularity. writ of inquiry to be executed be continued, the notice of 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, aries' office in Lothbury, between the hours of eleven and one on a particular day. This notice was afterwards continued to a fubfequent day, but in the notice of continuance no mention was made of the hour or place at which the writ of inquiry would be executed. The Defendant did not attend; and a verdict was found for 1. 175. Shepherd Serjt. in fhewing caufe contended, that the notice of continuance was regular, as it neceffarily 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 fhould be otherwife. He alfo 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 Requests continuance need not exprefs any hour or place. |