When the discharge was about to take place, the attorney concerned for M'Intosh gave a note for the weekly allowance of 3s. 6d. signed by himself. Sed per BULLER J. The note must be given by the party in the suit, 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. 1798. The KING บ. DAVIS. HOGAN v. PAGE. Nov. 23d. a single bond Court on pay ment by the E BLANC Serjt. moved for a rule nisi to stay proceedings Proceedings on on a single bond on payment of 1057., together with the stayed by the costs of the action. Cockell Serjt. for the Plaintiff, stated, that the only question obligor of prinwas, whether the Plaintiff was entitled to interest on which cipal and costs they wished 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 1051. of good and lawful money of Great Britain, to be paid to the said M. Hogan, his executors, administrators, and assigns, in consideration of being found in a passage by the said M. Hogan, and on the same ration as the seamen of the said ship, with all medical assistance during the said voyage to England, for which payment to be well and truly paid, I bind myself, my executors, and administrators, firmly by these presents. Sealed, &c. and dated 13th May, 36 Geo. 3. The Court were clearly of opinion, that no interest ought to be given, and made the (a) Secùs, in the case of a bond conditioned for the payment of a lesser sum; on which interest must be paid from the day of the date: though no in Rule absolute. (a) terest be reserved in terms, nor any day (b) Vide Hilhouse v. Davis, 1 M. & S. 169. 173. without interest. (b) ROBERTS v. GIDDINS. Nov. 23d. CLAYTON Serjt. before shewing cause against a rule for staying An affidavit to proceedings on the bail-bond, objected to the affidavit on found a rule for staying prowhich the rule nisi had been obtained, because it was intitled in ceedings on a the action against the bail, whereas it is the usual practice for these bail-bond, should be entitled in the action against the bail. motions 1798. ROBERTS v. GIDDINS! Non. 24th. Where no point has been saved at the trial, the Court will not set aside a verdict on a question of law, if the justice and conscience of the case be with it. It seems that a woman living apart from her husband in a state of adultery, is liable on her own contracts, though she has no separate maintenance. (c) [ 339 ] 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 BULLER J. The action on the bail-bond is depending: then why should not this affidavit be read? Where indeed, 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 unless it be intitled in some action, no perjury can be assigned upon it. I Per Curiam, Let the affidavit be read. Cox v. KITCHIN. NDEBITATUS assumpsit, for goods sold and delivered, and work and labour done. Plea, General issue. The cause was tried before Rooke J. at the Westminster sittings in this term, when it appeared, that the Defendant was the wife of one Wells who was then living, but that for the last four or five years she had gone by the name of Kitchin, having lived during that time as mistress with a person of that name (a); that she kept an hotel, and that the action was brought by the Plaintiff as a carpenter, for materials found, and work done, in fitting up the hotel. The learned Judge directed the jury, in case they should be of opinion that the Defendant was living in a state of open adultery at the time of the contract made, to find a verdict for the Plaintiff, for as the husband under those circumstances would not then be liable, he thought that the wife must be liable herself (b). A verdict was accordingly found for the Plaintiff. No point was saved 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 rule be had on the authority of Gilchrist v. Brown, 4 T. R. 766., where it was decided on demurrer, that a replication to a plea of coverture was bad, because it was destitute of the principle on which all the modern cases had proceeded, where femes coverts had been held liable; viz. a separate maintenance. (a) In Norwood v. Stevenson, T. 11 & 12 Geo. 2. B. R. Bull. N. P. 136., and in Hudson v. Brent, sittings after Hil. T. 26 Geo. 3. coram Lord Mansfield, Esp. N. P. 124., it was held that if a man cohabits with a woman, allows her to assume his name and passes her to the world as his wife, though in fact he is not married to her, yet he is liable to her contracts for necessaries. Judges on both sides in Manby and Another v. Scott, 1 Lev. 4., that the wife could never be charged; though they differed as to the liability of the husband. And in Hatchett v. Baddeley, 2 Bl. Rep. 108%., Blackstone J. held, that although the hus band were not bound to pay the debt, it did not follow as a legal consequence that the wife should be compelled alone: and he was of opinion in that case, that the debt could not be recovered of either. (b) It was taken for granted by the (c) Vide Fallick v. Barber, 1 M. & S. 108. Carstairs v. Stein, 4 M. & S. 19%. Furrant v. Olmius, 3 B. & A. 692. Campbell v. Twemlow, 1 Price, 81. 13 BULLER J. very dif BULLER J. This case comes before the Court under ferent circumstances from those of the case cited. The question there arose on demurrer, whereas this is a motion to set aside a verdict. Motions for new trials are governed by the discretion of the Court. Where the Judge at Nisi 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 new trials is that of the Dutchess of Mazarine (a). There can be no doubt but that was a case of a verdict against law: yet the Court said, that as the justice and conscience of the case were clearly with the verdict, they would not interpose (b). Here it is perfectly clear, that the husband was not liable: that point was solemnly 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 wife be not, she stands in a most miserable condition. How is she to find the means of supporting herself? How is she to procure even a joint of meat for her daily subsistence? She can obtain no credit,unless she be liable for her debt: her situation would be melancholy in the extreme. But whether she be strictly liable or not, it appears that she has (a) 1 Salk. 116. 2 Salk. 646. (b) Vid. etiam Smith v. Bramston; Smith v. Frampton: Anonymous, Pus. 8 Will, 3. B. R. and Smith v. Page, 2 Salk. 644. Sparks v. Spicer, 2 Salk.648. Dunkly v. Wade, 2 Salk. 653. Goslin v. Willcock, C. B. 2 Wils. 306. Sampson v. Appleyard, C. B. 3 Wils. 272. Allen and Another v. Sir John Peshull Bart. 2 Black. 1177. Doe v. Williams, Cowp. 622. Farewell v. Chaffey and Others, 1 Burr. 53. Dr. Burton v. Thompson, 2 Burr. 664. Foxcroft v. Duke of Devonshire, 2 Burr. 936. Emondson v. Machell, 2 T. R. 4. Wilkinson v. Payne, 4 T. R. 468.-But if the Court had considered the verdict in the present case to be clearly wrong (c) Covier v. Hancock, 6 T. R. 603. 1798. Cox V. KITCHIN. 1798. Cox v. KITCHIN. lived as a feme sole, 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 sole she ought to be liable for her debts. ROOKE J. I am of the same opinion. Williams took nothing by his motion. (a) (a) Vid, De Gallion v. L'Aigle, post, Nov. 27th, and the cases there cited, 357. Non. 24th. Plaintiff was employed to wash clothes for Defendant who was a prostitute, knowing her to be such; and held that the use to which the clothes might be applied, could not bar IN LLOYD V. JOHNSON. NDEBITATUS assumpsit for work and labour done, and on the common money counts. Plea, Non assumpsit. At the trial before Rooke J. at the Westminster sittings in this term, it appeared by the evidence of a servant maid of the Defendant, (who was also 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 shewn that the articles washed, consisted principally of expensive Plaintiff of an dresses, and that there were also some gentlemen's night-caps; action for work the witness swore that the former were for the purpose of enand labour. (a) abling the Defendant to appear at public places, and that the latter were worn by those perons who slept with her mistress. rière. Fau Lauge She also proved that the Plaintiff and his wife had full knowchaledge 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. Verdict for the Plaintiff. Cockell Serjt. now moved for a rule to shew cause why the verdict should not be set aside and a nonsuit 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 prostitute must have a lodging; but it being («) Vide Bowry v. Bennet, 1 Campb. 348. Webb v. Brooke, 3 Taunt. 6. shewn shewn 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. Richardson, Westminster sittings after Easter term, Espin. Cas. N. P. 15., where the same 33 Geo. 3. point was ruled by Lord Kenyon, at the 1798. LLOYD v. JOHNSON. THE WHITE V. DENT. Nov. 24th. ap HE Plaintiff having filed his declaration, the Defendant peared, but never took the declaration out of the office: when the time for pleading was out, the Plaintiff signed judgment without having demanded a plea. Plaintiff cannot sign judgment for want of a plea, without demanding one; though Defen A rule nisi having been obtained to set aside this judgment dant has not for irregularity, taken the declaration Clayton Serjt, now shewed cause, and contended that if the decorate Defendant does not take the declaration out of the office no office. (c) 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, said, that although the Defendant must 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 costs. (b) (a) R. T. 12 W. 3. B.R. R.M. 10 G. 2. (b) Vid. Nott v. Oldfield, B. R. 1 Wils. B.R. Keelingv.Newton, B.R. 1Wils, 173. 134. (c) Vide Park v. Rendle, 8 T. R. 465. North v. Lamhert, 2 B. & P. 218. |