1800. of the fettlement under the provifions of the Mutiny Act (a); for it was decided in R. v. The Inhabitants of Warley (b) that the The KING original examination of * a foldier touching his fettlement as well as against the attefted copy of it was admiffible evidence of the settlement The Inhabi* tants of BILTON.

under that act.

Lord KENYON C. J. interfering, faid that the cafe was too *[ 15 ] plain for argument. That the paper in question might poffibly have been good evidence if properly authenticated: but the objection here was that the poffeffion of it was not accounted for, or any other circumstance proved to authenticate it (c). The mere production of it in court proved nothing.

[ 16 ] Thursday Nov. 13th.

The refpondent's counfel then prayed the Court to fend the cafe down again to the feffions to be heard upon the merits. But

Lord KENYON C. J. faid that it was their own fault in not being prepared with fufficient legal proof upon the trial of the appeal: and it would be of mifchievous confequence to permit parties to go to another trial because their evidence was defective in the first instance. That the Court were bound to quafh the order of feffions, which appeared to have no foundation for its fupport; and the confequence followed of course.

Per Curiam,

Lambe was to have argued against the orders.

Both orders quafhed.

(a) S. 33. enables two or more juftice of the peace for the county &c. where any noncommiffioned officer or foldier fhall be quartered, in cafe fuch officer or foldier has either wife or child or children, to caufe fuch officer or foldier to be fummoned before them, in the place where they are quartered, in order to make oath of the place of their last legal fettlement; and fuch perfons are directed to obey fuch fummons, and to make oath accordingly. And fuch juftices are ther by required to give an attested copy of fuch affidavit to the perfon making the fame, to be by him delivered to his commanding officer, in order to be produced when required; which attefted copy fhall be at any time admitted in evidence as to fuch laft legal fettlement before any of his majefty's juftices of the peace, or at any general or quarter feffion of the peace. Provided always that in cafe any fuch officer or foldier fhall be again fummoned to make oath as aforefaid, then on fuch attefted copy of the oath by him former'y taken being produced by him or by any other perfon on his behalf, fuch officer or foldier fhall not be obliged to take any other or further oath with regard to his legal fettlement, but shall leave a copy of fuch attefted copy of examination if required. (b) 6 Term Rep. 534.

(c) The want of proof of the hand writing of the magiftrates had been before suggested at the bar as the principal objection to the admiffion of the evidence.

The Court A

will dif

charge a

bail, tho' at

the credit

PITT against THOMPSON.

RULE was obtained calling on the plaintiff to fhew caufe why the defendant fhould not be discharged out of cuftody on common bail in this action of affumpfit, on the ground of her feme covert being a feme covert. The affidavit stated the cause of action to be for on common the rent of a house in which she had refided for several years, and the time of for which previous to the year 1796 the rent had been paid by her husband, who was a fea-faring man. At that period fhe applied to the plaintiff her landlord, and informed him that she had not heard of her husband for a long time, and believed he was dead, and defired to continue tenant of the premises, to which the plaintiff affented. And from that time the had paffed as a fingle woman, and had contracted as fuch with other perfons as well as the plaindead; there tiff. But it was now fworn that her husband was living.

given to her by the plaintiff the miftakenly in forme

formed him

band was

being no
fraud intended.

I.

Beft

PITT

Beft fhewed cause against the rule, and referred to the cafes of 1800. Partridge v. Clarke (a), and Waters v. Smith (b), where the Court, in recognizing the practice of discharging married women on fummary applications of this kind, qualified the rule with the excepti-against ons, where the fact itself was doubtful, and where the credit had been obtained by the defendant by impofing herself on the plaintiff as a fingle woman; which latter he contended had been done in this cafe: and the plaintiff had no means of afcertaining the truth of the other fact fworn to. But

THOMPSON

The Court thought that the defendant was entitled to the relief [ 17 ] prayed, confidering her as having made the representation of her husband's death to the plaintiff through mistake, and not from any intention to impose upon him.

Lawes in fupport of the rule.

(a) 5 Term Rep. 194. (b) 6 Term Rep. 451.

Rule abfolute (c)

(c) The Court granted a fimilar application in a cafe where the plaintiff at the time of the credit given to the defendant knew that he had a husband living abroad, though under terms of feparation from her, March v. Capelli, Hil. 39 Geo. 3.

JENNINGS against MITCHELL.

Friday,
Nov. 14th.

In an affida.

THE plaintiff held the defendant to bail for the sum of 11901. 115. 3d, and in the affidavit to hold to bail the plaintiff, vit to hoid after swearing to the debt to the amount stated, depofed, "that to bail for the defendant hath not made any tender or offer to pay the faid 11901. 115. fum in bank of England notes to the knowledge or belief of this 3d. it is not deponent."

enough to

negative a

stat but a ten

der in bank

tional um,

be tufficient

with n the

A rule was obtained calling on the plaintiff to shew cause why the tender of the bond should not be delivered up to be cancelled, and a common bank notes; jaid debt in appearance entered for the defendant, on the ground that the for non contender of the debt in bank notes was not properly negatived, according to the provisions of the bank act, 37 Geo. 3. c. 45. notes wis which requires (9.) that no perfon fhall be holden to fpecial made of all bail," unless the affidavit to hold to bail contain therein that no but he frac "offer has been made to pay the fum of money in fuch affidavit which would " mentioned &c. in notes of the faid Governor and Company "expreffed to be payable on demand, (fractional parts of the fum tatute 37 of twenty fbillings only excepted,)" &c. and non conftat, according e. 3.c.45. to this affidavit, but that there may have been a tender of 1190/. [ 18 ] in bank notes, which would have been a compliance with the ftatute as nearly as the fum would admit of; and the affidavit ought to have proceeded to negative a tender of any part of the debt in bank notes. To this it was answered that the fair conftruction of the affidavit was that there was no tender of the debt in bank notes as far as it was poffible to make fuch a tender on account of the fractional fum.

་་

But

The Court faid that the objection, which however was stricti

juris, must prevail.

Giles in fupport of the rule.

Parnther against it.

Rule abfolute.

1800.

Friday,

Nov, 14th.

tiff in affida.

vit to hold

the defendant to bail muft give

JARRETT against DILLON.

The plain. A RULE was obtained calling on the plaintiff to fhew caufe why a common appearance fhould not be entered for the defendant upon the defect of the affidavit on which he had been holden to bail, in which the plaintiff was merely defcribed as of fuch a place, without giving himself any addition of state or degree. himself an This objection was grounded on the rule of Court of Mich. 15 Car. 2. 1663. whereby "It is ordered that the true place of abode the defend." and the true addition of every perfon who shall make affidavit "in court here shall be inserted in such affidavit."

addition,

otherwise

ant will be discharged

on common

Erskine and Barrow shewed cause against the rule; ift. because bail. the rule only applied to an affidavit made in a caufe in Court, [19] whereas an affidavit to hold to bail was only in the nature of process to bring the party in. 2dly. It was not competent to the defendant to take any objection to any proceeding in the caufe till he had appeared in Court according to the condition of the bail bond by putting in good bail; after which if the objection were well founded he might avail himself of it in discharge of his bail (a). But

[20]

Friday,
Nov. 14th.

by one part

ner to ano.

The Court faid that the rule of Court in queftion had always been acted upon in this inftance as well as in others; and it was important to preserve the settled form of proceedings; and that no affidavit fhould be received without fuch addition. That this had probably been required in conformity to the ftatute of additions 1 Hen. 5. c. 5. which made fuch addition neceffary in all original writs of actions perfonal appeals and indictments; and in criminal cafes any defect of this kind was still matter of error (b).

Lawes was to have fupported the rule.

Rule abfolute.

(a) in Defborough v. Copinger, 8 Term Rep. 77. the Court would not admit of any objection being made to the aindavit to hold to bail after judgment by default; but faid that any objection or that sort ought to be made in reasonable time after the error com

mitted.

(b) See itat. 8 II. 6. c. 12. 5 Eliz c. 23. and 4. Ann. c. 16. f. 7. But the advantage is waved by the pica of not guilty. 2 Hale 175. 2 Hawk.ch. 23. f. 25. ch. 25. 1. 70.

WRIGHT against ROBERT HUNter.

Money paid THIS was an iffue directed by his Honor the Mafter of the Rolls for the opinion of this Court. The action was for money paid laid out and expended by the plaintiff for the defendant's use, and ther before for money had and received by the defendant for the ufe of the plainruptcy of the tiff. The defendant pleaded 1. the general iffue; 2. a general plea of bankruptcy before the caufes of action; on which iffues were for the pur- joined. At the trial a verdict was found for the plaintiff with

the bank

latter

pofe of being

paid over as his liquidated share of a debt to their joint creditor, if it be not fo applied is proveable as a debt under the commiffion of the bankrupt partner; altho' the folvent partner were not called upon to repay the But the folvent partner may recover debt to the joint creditor till after he bankruptcy of the other. from the bankrupt his fhare of fuch debt fu paid after th. bankruptcy to the joint credi or, notwithstanding the bankrupt has obtained his certificate. A. engages as a partner in a particular tranfaction with B. C., and D., who were before partners; B., C.,and D., become bankrupts, etter which A pays a debt due from himself and them to a joint creditor, held that these three partners conftituted but one debtor to A., and that he might recover from B. the proportion of B., C., and D. towards the joint debt; B. not having pleaded in abatement.

damage

HUNTER.

dmages 5781. 55.6d.fubject to the opinion of the Court on the fol- 1800. lowing cafe. The defendant together with Margaret Hunter and Heney Keowen Hunter deceafed, who were copartners in equal WRIGHT thirds, were concerned with the plaintiff in the year 1791 in a hip against called The Royal Charlotte, and in the outfit of the said ship upon a fave voyage from the port of Briftol to the coast of Africa; (viz.) the plaintiff in fix twenty-fourth fhares, and the defendant and the faid M. and H. K. Hunter as fuch copartners in eighteen twentyfourth fhares of the faid fhip and cargo. The defendant and M. and H. K. Hunter were also purfers or fhips' husbands of the ship, and as fuch it was their duty to pay the charges of the outfit of the ship and cargo, and to receive from the plaintiff his part of the fame. Previously to the 8th of February 1793 the defendant and M. and H. K. Hunter as purfers of the ship delivered to the plaintiff the accounts of all the expences of the outfit with the debit and proportion of the plaintiff in and for the fame, to be paid by him to the [21] defendant and his then partners as aforefaid according to the before mentioned share in fuch fhip and cargo. On the 8th of February the plaintiff, and the defendant for himself and his faid then copartners, met and adjusted and fettled the aforefaid accounts; and the plaintiff then paid to the defendant and his then partners his faid 6-24th parts or proportion of the outfit, being 782/. 195. 2d. On the 9th October 1793 the defendant and his partners became bankrupts, and a commiffion of bankrupt thereupon iffued against them, under which the defendant has obtained his certificate. The defendant and the faid M. and H. K. Hunter did not pay all the feveral creditors of the ship and cargo for her outfit, but at the time of their bankruptcy 16381. 8s. 8d. was unpaid on account thereof, which faid fum the plaintiff as fuch part owner was called upon to pay. After the making the original purchase by the said part owners of the fhip the defendant and the faid M. and H. K. Hunter fold 11-24ths of the same ship, part of their shares in her, to Mr. Bettington and a perfon unknown, but represented by Mr. Fowler as his agent, (viz.) 3-24ths to Mr. Bettington, and 8-24ths to the faid unknown person. This fale however was unknown to the plaintiff till after the bankruptcy of the defendant. The fhares or parts of the faid owners in the fhip's unpaid debts of 16381. 8s 8d. was by a perfon appointed by all parties apportioned after the bankruptcy of the defendant as follows:

The plaintiff paid his 409!. 125. 2d. for his fhare of the fhip's [ 22 ] debt after the defendant's bankruptcy. But there being a failure of payment of the faid Meffrs. Hunters' share of 4771. 175. 8d. the

fame

1800. fame was fubdivided by the fame perfon between the other partners

WRIGHT

as follows:

againft HUNTER.

The faid feveral fums of 841. 6s. 8d. and 2241. 175. 8d. were refpectively paid by the faid Meffrs. Bettington and Fowler, and the faid fum of 1581. 13s. 4d. by the plaintiff, after the bankruptcy of the defendant, to the creditors of the ship, in discharge of the faid fum of 4771. 175. 8d. of the faid Meffrs. Hunters' part or share of the debts of the fhip. All the creditors of the fhip (except two to the amount of 142/. 35. which the plaintiff paid after the bankruptcy of the defendant,) proved their debts under the commiffion of bankrupt against the defendant, and received dividends of 35. in the pound on their debts fo proved : but ftill the faid 16381. 8s. 8d. remained due as aforefaid after payment of the faid dividends. The defendant and the faid M. and H. K. Hunter continued in equal thirds entitled to the faid fhip from the time of the original engagement up to the faid bankruptcy, which happened on the faid 9th October 1793. The plaintiff has also fued the faid Margaret Hunter in an action now depending on account of her share of the faid fhip's debts.

The question is whether the plaintiff is entitled to recover against the defendant the fums of 409/. 125. 2d. and 1687. 13s. 4d., or ci[ 23 ] ther of them, or any part thereof, fo by him paid after the defendant's bankruptcy, notwithstanding his certificate.

Efpinaffe, for the plaintiff, contended that he was entitled to recover both thofe fums, on the ground that the plaintiff's right of action accrued fubfequent to the defendant's bankruptcy, and the debts, not being proveable under the commiffion, were not barred by the certificate. 1. With refpect to the fum of 409l. 125. 2d. the fituation of the parties is this; the plaintiff and defendant may be confidered as joint owners of a fhip, on account of which the defendant, in the character of fhip's husband, contracted certain debts; and previous to his.bankruptcy the plaintiff paid him the whole of his contributory fhare towards the difcharge of those debts. The defendant mifapplied the money and became bankrupt, and subsequent to his bankruptcy the plaintiff was called upon in his character of part owner by the fhip's creditors for the payment of part of those demands which he had before settled with the defendant, and was accordingly compelled to pay to the creditors the fum of 409/. 125. 2d. This fum then not being paid till after the bankruptcy of the defendant was not fuch a debt as could be proved under the commiffion. By the act of the 5 Geo. 2. c. 30. J. 7. none but debts owing at the time of the bankruptcy are barred by the bankrupt's certificate: and what is meant by debts is explained in a fubfequent part of the fame claufe, namely, where the caufe of action accrued before the bankruptcy. Therefore the debt mu have been fuch whereon an action could have been maintained