1802. BARING บ. CLAGETT. objections taken to the ship's papers, and the regulations by Postea to the Defendant. END OF TRINITY TERM. CASES ARGUED AND DETERMINED IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER, IN Michaelmas Term, In the Forty-third Year of the Reign of GEORGE III. 1802. SMITH and Another, Assignees of J. S. a Bankrupt, THIS Bayley Serjt., objected to this affidavit as being made by the bankrupt, who could not take upon himself expressly to negative a tender which might have been made to his assignees. He cited Smith v. Tyson, ante, vol. 2. p. 339. Best Best Serjt. contrà, submitted that the assignees ought not to be called upon to make an affidavit, and referred to Lawson v. M'Donald, ante, vol. 2. p. 590. where the Court did not call upon the clerk of the peace, in whom the estate of an insolvent had been vested, and in whose name an action was commenced, to negative the tender. The Coart held the affidavit insufficient, and made the If a feme covert be taken in execution under a war WILKINS V. MARY WETHERILL and CHARLOTTE THIS COUTTS. HIS was an application to the Court, calling on the Plaintiff to shew cause why the judgment signed in this case against Charlotte Coutts, one of the Defendants, and the writ of execugiven by her as tion thereon, should not be set aside for irregularity, and the sum of 421. 17s. 6d. levied thereon, be restored to her. rant of attorney a feme sole, the Court will not discharge her on a summary application. "The ground of this application was, that the judgment was entered up on a warrant of attorney given by Charlotte Coutts jointly with Mary Wetherill, the other Defendant, the former being a feme covert at the time when the warrant was given. It appeared from the affidavits that Mary Wetherill, who was a widow and the mother of Charlotte Coutts, having been arrested for a debt, the latter joined with her in a warrant of attorney to confess judgment, in order to obtain her mother's discharge; that the Plaintiff was not apprized that Charlotte Coutts was a feme covert and that having entered up judgment on the warTarant of attorney, Charlotte Coutts was taken in execution, whereupon her husband paid the debt. I Pastoris Praed Serjt., being called upon to support the rule, contended1 that Charlotte Coutts being a feme covert, her deed was absolutely void and he cited the case of Saunderson v. Marr, 1 H. · Bl. 75. where the Court set aside a judgment on a warrant of attorney given by an infant, though he had promised not to take advantage of his infancy. The Court said it was very evident that the case of Saunderson v. But see Collins v. Rowed, 1 N. R. 54. that 1802. WILKINS V. that the Defendant was an infant at the time that he gave the warrant of attorney, whereas in this case the Plaintiff was not apprised that Charlotte Coutts was a feme covert at the time the warrant of attorney was given. They observed that it had been WETHERILL. repeatedly decided that the Courts would not assist a feme covert in a summary way who obtained credit by acting as a feme sole (a): and that Charlotte Coutts therefore must resort to her writ of error. (a) See De Gaillon v. L'Aigle, ante, vol. 1. p. 8. and the note to that case. Also Pearson v. Meadon, 2 Bl. 903. Partridge v. Clark, 5 T. R. 194. and Waters v. Smith, 6 T. R. 451. But where a feme covert obtained credit upon a mis-, taken misrepresentation that her husband was dead, the Court of K. B. dis Rule discharged. (b) charged her upon common bail, because (b) See also Maclean v. Douglas, ante, PIGOTT and Anothers v. TRUSTE Nov, 16th. If a Plaintiff. having taken THIS HIS was an application calling upon the Plaintiffs to shew cause why the assignment of the bail bond and the proceedings thereon (if any had been had), should not be set aside for irregularity. The application was made on the behalf of the bail on affidavit stating, that the action was commenced against the Defendant so long ago as the 8th June 1801; that the bail-bond was immediately given to the sheriffs of London; that shortlyceedings canafter this an arrangement between the parties took place; and that the bail never heard any thing more of the action until the 6th of October last, when they were served with process at the suit of the Plaintiffs, as assignees of the sheriff. It was also sworn that no declaration was filed either in the term in which the action was commenced, or in the Michaelmas term following; and also that no rule for time to declare was obtained either in the said Michaelmas term, or in Hilary term following. On the part of the Plaintiffs, it was sworn that in Trinity term 1801, bail above not being put in within due time, they took an assignment of the bail-bond, on which they were now proceeding. Bayley Serjt, shewed cause, and insisted that the Plaintiffs were perfectly regular in their proceedings, for that having taken an * And see Collett v. Bland, 4 Taunt. 715. Ditchett v. Tollett, 3 Price, 257–260.! assignment not be set aside But the Court for irregularity. will stay such appear that proceedings if has been guilty it the Plaintiff of laches. 1802. PIGOTT บ. TRUSTE. assignment of the bail-bond in Trinity term 1801, while the action was pending in the court, they had thereby acquired a right of action under the statute, and consequently were entitled to proceed. He observed that on this ground the case was distinguishable from that of Sparrow v. Naylor, 2 Bl. 876. where the Court stayed proceedings on a bail-bond which had been assigned after the cause was out of court. Shepherd Serjt. in support of the rule, argued that the circumstance of having taken the assignment within due time could make no difference, as the Plaintiffs had omitted to proceed within due time; and that if a contrary practice were to prevail, the bail would be liable at any indefinite period, though they had been induced by the laches of the Plaintiff to suppose the question completely at an end, and had been thereby deprived of the opportunity of applying to the Court for leave to put in bail above upon terms, or of rendering the Defendant. He observed that the reason why the action on the bail bond must be brought in the court where the original action was commenced, is, that the Court may be able to regulate proceedings upon the bail-bond in such a way as to do justice to the parties; and that the ground upon which the Court proceeded in Sparrow v. Naylor was, that as soon as the cause is out of court, the Court ceases to have jurisdiction over the bail-bond. The Court were of opinion that the present rule could not be supported, it being moved on the ground of irregularity: for the assignment having been taken in due form, the Plaintiffs were perfectly regular in their proceedings. They said that this case differed essentially from that of Sparrow v. Naylor, because the assignment in that case having been taken after the cause was out of court, was a mere nullity (a), whereas here the assignment having been taken within time, the Plaintiffs so far were right. They added, however, that both cases were pregnant with the same inconvenience, and if the bail applied to the equitable jurisdiction of the Court, they should find no difficulty in staying the proceedings on the bail-bond in this and in all other cases where it should appear that the Plaintiffs had by their neglect forfeited their claim to institute proceedings against the bail. Rule discharged. (a) The words of 4 Anne, c. 16, s. 20. are "the sheriff or other oflicer at the request and costs of the Plaintiff in such action or suit, or his lawful attorney shall assign," &c. |