1831.

HITCHCOCK

บ.

BADHAM.

separate business might be taken to compel appearance to process for a debt incurred by her in that business.

Per Curiam.-The plaintiff has no doubt that she is a married woman, and sues the husband accordingly as liable for the supplies to the wife. Then, though he is absent from the country, and knows nothing of the process, you take goods in possession of the wife to compel his appearance.

Rule absolute with costs, on terms of bringing no action.

Bail allowed

to be changed

on excuse

offered,

and

WHITEHEAD against MYNN.

ALEXANDER moved, under Reg. Gen. Trin. 1 W.4. (Vol. I. Appendix, p. vi.) for a rule to shew cause why plaintiff should not be allowed to substitute two on undertak- other bail (naming them) in lieu of the two bail already ing to pay costs incurred put in, who had not justified, and were not able to jusby putting in insufficient tify. The excuse offered for putting in bad bail was, bail and put that the agent had not time to communicate with the ting plaintiff

in same situ- country attorney.
ation as if
good bail had
been put in at
first.

BAYLEY B.-The rule was made after much consideration. Its object was to secure good bail in the first instance. However, as this is the first application, and is made under peculiar circumstances, just after the rule has begun to operate, a rule may be granted on undertaking to pay the costs incurred by putting in insufficient bail, and putting the plaintiff in the same situation as if good bail had been put in at first.

The rule was afterwards made absolute, no cause shewn.

REEVES against HUCKER.

hold to bail

money paid,

&c. is bad if

it does not allege the mo

ney to have

ON 5th November Alexander moved that an exoneretur Affidavit to might be entered on the bail-piece, and the bail- for rent due, bond given up to be cancelled, and the defendant discharged out of custody on entering a common appearance, and why plaintiff should not pay the defendant's costs and the costs of this application, and why proceedings should not be stayed in the mean time. The affidavit to hold to bail was for rent due to the deponent by the defendant, and for money paid and expended by the deponent for the defendant, without adding at his request." He stated that in K. B. the mistake was this defect is held fatal, Pitt v. New (a); in C. P. not. (b)

BAYLEY B.-The judges were of opinion at a meeting in this term, that the King's Bench practice was the correct one.

Rule granted without costs.

In consequence of two days' notice of motion for stay of proceedings not having been given (c), the rule was not drawn up, and defendant was obliged to put in bail above, who rendered him to the Fleet.

Alexander renewed his former motion; but

Per Curiam (BAYLEY, GARROW, and BOLLAND, Bs.) – Dargent v.Vivant (d) and many other cases shew that this application is too late after bail above put in.

(a) 8 B. & C. 654.

(b) 5 Taunt. 704. 756. 1 Marsh. 315. 6 Taunt, 389. 2 Marsh. 83. 1 Bing. 338.

(c) Dax's Practice, 137.

(d) 1 East, 330. and see id. 81. 1 B. & P. 132. 7 T. R. 375. 1 M. & S. 230. 6 Taunt. 185. Shawman v. Whalley,

been paid, &c. ant's request," but an application to discharge

"at defend

a defendant

on account of

too late after bail above

put in.

Bail put in may after exception, and

on the day for

to render de

ON

GIBSON and Another against White.

N 16th November, Comyn moved that the bail should have time till the 21st to render the defendant, and to justification, stay proceedings in the mean time. Bail were put in on move for time the 7th, excepted to on the 10th; on the 12th the defendant, with fendant became bankrupt, and was committed to Newout justifying on the ground gate by warrant of commissioners of bankrupt, but was to be brought before them on the 21st. The rule was drawn up for the 18th.

that he is in custody under warrant of commissioners of bankrupt.

On the 19th Butt shewed cause, that the plaintiff having committed no irregularity, the rule could not be supported till the bail were in Court by having justified.

But per Curiam.-Justification is unnecessary, nor is it the object of the bail, who assign the special ground for time to render, that the defendant is as it were in criminal custody.

Rule absolute, defendant to be rendered

on the 21st.

See Tidd, 9th Edit. 282.

The plaintiff's

costs of in

quiries after

PAINE against MUNTON,

HUTCHINSON, for plaintiff, applied for costs of inquiries after the sufficiency of the bail, who had

sufficiency of filed an affidavit according to Reg. Gen. Trin. 1 W.4.(a)

bail are costs

in the cause.

(a) Vol. I. Appendix, vii.

Ball moved that they might be made costs in the cause; to which

BAYLEY B. (the only judge in Court) after consideration, acceded: saying, the plaintiff would have to pay them if no order should be made.

1831.

PAINE

v.

MUNTON.

ago,

EDWARDS against BROXON.

Pleas

TRESPASS for breaking and entering two closes
called Coppice field and Elm-barn meadow.
general issue and right of way over those closes.
At the trial at the Summer assizes for Shropshire before
Patteson J., a right of way was proved by defendant over
the Coppice field; but it was shewn that about fifty years
instead of going from that field directly into Elm-
barn meadow, as pleaded, the way passed first into an-
other close, and then into Elm-barn meadow. On this
variance the plaintiff had a verdict for nominal damages,
having proved that the defendant had gone over the two
closes. Jervis moved for a new trial on affidavit of sur-
prise and payment of costs, in order to amend the plead-
ings on this slip in the description.

Per Curiam.-We know no instance where a new trial has been applied for, the verdict being clearly right and the pleadings wrong. The defendant used the way described in the plan, but if he had pleaded it as it of right existed, the plaintiff might have newly assigned extra

viam.

Rule refused

BOWSER and Others against AUSTEN.

The residence CHILTON moved for a distringas. The affidavit was

of defen

dant must be

silent as to the place of the defendant's residence,

stated in the at which he was attempted to be served.

affidavit for a distringas.

BAYLEY B.--That should be stated, for he may have resided in one street and removed to another. The affidavit should state where the dwelling-house of the defendant was, at which the personal service was attempted. Motion refused.

See Dax's Practice, 27. and next case.

FISHER against GooDWIN.

STEER moved for a distringas. Only two calls to

serve the defendant were stated.

BAYLEY B. Except under extraordinary circumstances, it is considered requisite that there should be at least three attempts to serve the defendant with the venire. The affidavit should state where the residence of the defendant is, and the answers given to the enquiries there made. From such materials the Court will judge, whether the defendant is in the neighbourhood and keeps out of the way to avoid personal service. Nothing appears here to shew that he was at home, or that he was