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No information against a husband for endeavouring to retake his wife, contrary to articles.
LORD VANE married A. D. 1734. By the marriage settlement 400/. per annum pin-money settled on Lady Vane; to which Lord Vane added afterwards 300/. more. Soon after, she libelled him in the spiritual court for cruelty, but nothing done upon it (a). New articles were made A. D. 1737, reducing the 700/. to 500/. per annum, with covenant on the part of Lord Vane to permit her to go where, and when, and live with whom she pleased. They cohabited again; but she soon left him and went to Germany, whither he pursued her, but could not find her. He applies to Chancery, and obtains an injunction to suspend the articles. They cohabited again in 1744' (b), and he behaved very tenderly and went to Bath with her. In December she eloped again, grew very expensive, and kept bad company at Fernhall in Essex. In August 1746, he came there with two persons, armed only as travellers; got into the house, and endeavoured to persuade her to return to him, but to no purpose. She got away by stratagem, and locked him in. In September, he came and took forcible possession of the house. She moved for an information for this breach of the peace, contrary to the articles of 1737.
But per Lee, C. J., Foster and Denison, Js.—Articles must be supposed articles of reconciliation, not of separation. This a strange clause to be inserted in such articles: we will not determine its validity by granting information; which cannot be done, without putting a criminal and scandalous construction ] upon it. Lady Bawlinson's case was very * different. If the articles are valid, there is a proper remedy by civil action (c).
(a) See Lord Vane v. Lady Vane, Barnard. C. R. 135, and Whorewoodv. Whorcwood, Finche's R. 153.
(ft) It appears that Lady Vane had exhibited articles of the peace against her husband propter snvitiam in M. T. 1743, and that the security required was 10002. for Lord Vane and his bail in 500/. each; 13 East, 171, n. (a); 2 Stra. 1202, S. C.
(c) A wife separated by articles in con
sideration of money received by the husband, with covenants from him, cannot be seized by him or forced to live with him; K. v. Meade, 1 Burr. 542; R. v. Lister, or Lady Rawlinson'sCase, 1 Stra. 478, 8 Mod. 22: see R. v. Robinson, post, 541, and Head v. Head, 3 Atk. 547. A party applying for an information must waive his right of action; R. v. Sparrow, 2 T. R. 198.
Walkhouse V. Derwent and Larwood.
AT Norfolk Quarter-Sessions, an order of two justices relating Court will not to a case of bastardy was confirmed. Plaintiff was counsel for decide w*b*"the order, defendants against it. They afterwards laid a wager, that the Court of K. B. would quash the order; and articles were drawn, by which the defendants agreed to bring a certiorari in order to try it. On default of so doing, the plaintiff brought an action on the articles. It was moved on behalf of the defendants, that the proceedings should be staid, and the articles delivered up.
Per Cur.—We desire the gentlemen would make an end of it between themselves, and not let us hear any more of it, it being a very improper thing (d).
(d) In Jones v. Randall, 1 Cowp. 37, it wu held, that an action lies to recover money won upon a wager, "Whether a decree of the Court of Chancery would be reversed or not on appeal to the House of Lords:" but Lord Mansfield said, if it had been laid with a lord of Parliament or a judge, it would have been void from its tendency; Allen v. Hcarne, 1 T. R. 60.
The Court will not try an action upon a
The King V. Webb.
W EBB was captain of a sloop of war, and had pressed Cap- Information for tain Wager, of a merchant ship, to serve as a common seaman, malicious pressFor this, an information was granted, because though pressing Ing° may be warrantable in national emergencies, yet Webb appears to have exceeded his power and to have acted maliciously.
JM.OTION to rechange the venue into Middlesex, because Middlesex is the Spelman the plaintiff was a barrister; allowed to be good cause, venue for ■ bar" if proved by affidavit, but not otherwise (e). "*ter"
(«) Bacon v. Ramsey, Sty. 460 j Thompson v. Seroggs, 2 Show. 176; Row v. Rusul. Id. 242; Wing/kid's Case, 1 Mod. 64; Seaman v. Ling, Salk. 668; Burrough v. Willis, 2 Lord Raym. 1556, 2 Stra. 822. But if he sue at a common person, or en
outer droit, or jointly with his wife or other person, or be defendant, he has no such privilege. So Serjeants at law; Pr. Reg. 420: so attomies; Pye v. Leigh, post, 1065.
Shorter V. Packhurst.
AP the plaintiff is .attorney in B. R. and the defendant is so likewise, privilege will be allowed^). Secus if plaintiff belongs to C. B. and defendant to B. R., for defendant is not supposed to be present in C. B. as he is in B. R(#).
Near in a penal law construed strictly; yet not equivalent to next.
The King V. Harvey.
S. C. 1 Wils. 164.
HARVEY was brought to the bar to receive award of execution, pursuant to stat. 19 Geo. II (a), for not surrendering upon proclamation being charged with smuggling. The directions of the statute appeared to have been pursued; except as to fixing the order of council, and proclaiming it, in two market towns near the place where the fact was committed. It was done in one town within six miles, in another within thirty-three miles, and in a third within forty-two miles; but there were four or five market towns within eight or nine miles of it. Therefore Wright, Denison, and Foster, Js. (absente Lee, C. J.) held, that the directions of the act were not strictly pursued, as is necessary in penal laws. Not that by near must be understood next; but there must be a reasonable vicinity, of which the Court will judge.
(a) C. 34, s. 2; amended and altered by 52 Geo. 3, c 143, s. 11.
Symonds v. Parmiter (4).
S. C. 2 Stra. 1269.
Though outlaw- INDEBITATUS assumpsit. Process against two defendants ry be illegal and onajoint contract. One of the defendants being sued to outlawry, the plaintiff claims his whole satisfaction of Parmiter the other defendant; who pleads in bar that the outlawry was illegal,
voidable, it cannot be set aside by a third peraon in a collateral action.
(&) The history of this case is as follows. The plaintiff sued out a writ against Parmiter or Parminter and his partner
Barrow, in EasterT. 1743, If. Geo. 2; and proceeded to outlaw Barrow in llil. T. 1744, 17 Geo. 2; and declared against
and therefore the plaintiff cannot come upon him only. Plainr Sthond*
tiff demurs, &c.
For the defendant it was argued, 1, That the outlawry was illegal, because the party was not commorant in the realm. *2, That defendant Parmiter may avail himself of this irregu- [ *2l ] larity; because it is no new matter, but merely an answer to the plaintiff's declaration; 2Mod. 308; 2 Roll. 804. It could be pleaded no other way than in bar; not in abatement, because we cannot give the plaintiff a better writ. For the writ was right being against both. No inconvenience will arise to plaintiff by this bar; because he might discontinue his action, and begin again regularly. There were cited 2 Vent. 104; 1 Lutw. 35; 1 Leon. 87. Stat. 6 Hen. 8, c. 4; Dyer 214 a; Carth. 459. Though Court won't presume error in outlawry, yet if pointed out to them they must take notice of it.
For the plaintiff it was insisted; that supposing the outlawry to be erroneous, yet 'tis not void till made so by due course of law; and therefore defendant Parmiter cannot avail himself of it.
Per Cur. Lee, C. J.—This case is quite new. The plea seems disagreeable to the rules of law, and cannot be pleaded in bar. The plaintiff cannot discontinue without leave of the Court. The rule of law is, that such outlawries are not void, but voidable, 1 Lutw. 40, and voidable only sub modo, by putting in bail, by the party himself. Therefore, a stranger to the outlawry shall not demand of the Court, to pronounce the outlawry null.
Wright, J. inclined to the same opinion, but desired time to consider of it.
Denison, J.—If this plea prevails, no action against two partners would stand. Defendant shall not set aside a judgment of outlawry by plea. An outlawry cannot be reversed in a collateral action. I am quite clear.
Judgment for plaintiff, unless cause before the end of the
Farminter in the Trinity T. following (see clamation thereon was awarded, made, or
Symonds ''on of the Court; and Lord Kenyan said,
v. "Nothing can be more clearly established,
PaRmIter. than that in cases of contract the plaintiff
— v 'must sue all the contracting parties, and
proceed to outlaw such of them, as do not
must allege, that the joint-contractor waa in due manner outlawed in that suit; Saundertan v. Hudson, 3 East, 144: but it need not be alleged with a "proutpatet per recordum." Macmichael v. Johnson, 7 East, 50. See Knight v. Parker, post, 759; Abbot v. Smith, post, 947.
A charge by will on an estate does not make the heirapurchasor.
Allen V. Heber.
S. C. 2 Stra. 1270.
ACTION of debt on the bond of the father, to whom the defendant is heir. Plea, Iliens per descent (d). The fact was, that the father had devised his lands to the defendant charged with debts. Qu. If this makes him a purchaser? For plaintiff: held, Hob. 30, that it will not make the heir a purchasor. But if the tenure or quality of the estate were altered, it had been otherwise: Dyer 124; Styl. 148; Hcdgcr and Row, 3 Lev. 127, a devise to heir ex parte materna of no effect (e). Moor 644; Cro. Eliz. 919; Lutw. 797, Salk. 241 (/). For defendant were cited Cro. Car. 161 (g); 2 Mod. 286, Brittam and Charnock.
Per tot. Cur.—If the tenure or quality of the estate be altered, the heir is a purchasor; but a charge on the estate does not alter the manner of the heir's taking the land. A devise is void, where it gives the same as would be taken by descent; 1 Ld. Raym. 728(A).
Judgment for the plaintiff.
(d) See Com. Dig. Pleader, (2 E. 3). Bac. Abr. Heir % Anc. (F) p. 462.
(c) As to the rases, in which a descent ex parte maternd shall be considered broken, so as to let in the heir ex parte paternd, see Martin v. Strachan, 1 Stra. 1179, 1 Wils. 66, Willcs, 444, 5 T. R. 107, n. (a), 6 Bra P. C. 319, (2nd ed.); Roe v. Baldwere, 5 T. R. 104; Doe v. Morgan, 7 T. R. 103; Harg. Co. Lit 12 b, n. , and Hurst v. Earl of Wmchelsea, post, 187; Burgess v. Wheate, post, 128. See also Hutcheson v. Hammond, 3 Bro. C. C. 128.
(/) Clarke v. Smith, S. C. 1 Com. R. 72. i. (g) Gilpin's Ca. "It appears by Mr.
Ford's note of Allan v. Heber, though this is not noticed either in Strange or Blackstone's report of that case, that the Court denied Gilpin's case to be law:" per Bayley, J., 5 II. & S. 20.
(A) Emerson v. Inehbird. S. P. Chaplin v. Leroux, 5 M. 8c S. 14. See also Langley" v. Sneyd, 3 Brod. & B. 243; Smithy. Trigg, 1 Stra. 487; Scott v. Scott, 1 Eden, 458, where the cases on this head are referred to in Mr. Eden's note; Doe v. Timins, 1 B. & A. 530; Com. Dig. Ducent. (A). As to equitable assets, see Bailey v. Elans, 7 Ves. Junr. 319; Shiphard v. Lutmidge, 8 Ves. Junr. 26, and Smith v. Parker, post, 1230.
Mandamus refused, to a visitor, to restore a canon whom he had expelled.
The Kino V. The Bishop of Chester.
S. C. I Was. 206.
MOTION for a mandamus to the bishop, as visitor of the cathedral of Chester; to restore one Prescot a canon, whom he had amoved for several enormities. It appeared by the statutes of the church, that the bishop had a general power pu