1839. DAVIS V. SKERLOCK. appearance by the plaintiff for the defendant, could not be say PATTESON, J.-That point was expressly decided in the case cited. It is desirable that some rule should be laid down as to the time for making these applications, and I am sorry to see the passage in Mr. Tidd's New Practice, to which I have referred, in which he cites a decision of my own (b), that the defendant may wait for the plaintiff to declare, before he applies to the Court. I am not prepared to that I did not so decide, but I am sorry to see it quoted by Mr. Tidd, as it is a very different decision from that of Tyler v. Green, and other cases. In the case of Tyler v. Green, the application was made on the first day of Term, and that is a decision expressly in point, unless it can be distinguished on the grounds suggested by Mr. Williams. I think, however, I cannot give effect to so nice a distinction. In that case there was not a proper indorsement of the attorney's name on the writ, but that is too trifling a difference from the present, and it is far better to draw a broader line. In this case, therefore, the application was made too late. On the affidavits also, I think that the service sworn to on which that rule was granted, is contradicted. For these reasons the rule must be discharged. Rule discharged. (a) Ante, Vol. 4, p. 480. (b) P. 106. TRACEY v. M'ARLTON and Wife. Presumptive WIGHTMAN, moved for a rule to shew cause why the evidence of a marriage, is sufficient in an action against verdict found in this case for the plaintiff should not be set husband and wife, for a debt due by the wife, dum sola, without strict proof of the celebration of the marriage. ין aside, and a new trial had, on the ground of misdirection on the part of the under sheriff, who tried the cause. It was an action of debt, for money alleged to be due by the defendant's wife, dum sola, to the plaintiff. The defendants pleaded that they were never indebted. The original debt was proved at the trial; and evidence was also given that the defendants had lived together as man and wife, and the former had, on one occasion, spoken of the latter as "Mrs. M'Arlton." On this, which was the only evidence of the marriage, the under sheriff directed the jury, that there was quite sufficient evidence before them to warrant their finding a verdict for the plaintiff. This they accordingly did. It was now submitted, that as this was an action against husband and wife, for the recovery of a debt due by the wife before marriage, strict evidence ought to have been given of the marriage. The case was different from the ordinary one in which the debt was contracted by the wife after marriage. There very slight evidence might be sufficient to justify the presumption. that a marriage had taken place. Here, however, the under sheriff had not left the question to the jury, but had told them in, so many words, that there was sufficient evidence that the defendants were married. PATTESON, J.—I cannot say that the evidence was actually conclusive for the jury to find the marriage. Perhaps the under sheriff's charge was rather strong; but it was still a case for the jury to decide on. If a man chooses to hold out that a woman is his wife, it is his own fault. Therefore, even if the pleadings are as they are stated to be, I think I cannot disturb the verdict (a). Rule refused. (a) See Evans v. Morgan, 2 Cr. & Jerv. 453; and Leader v. Barry, 1 Esp. 353. 1839. TRACY v. M'ARLTON and Wife. VOL. VII. N N D. P. C. 1839. ABBOTT v. GREENWOOD. If a proceeding ADDISON moved, on behalf of the plaintiff, for a rule is irregular, the opposite party has a right to have it set aside; and, therefore, if the term of bringing no action, is not imposed by the Court at the time of disposing of the rule for setting aside the irre ing, the successful party cannot be restrained from bringing an action in respect of the irregularity. to shew cause why the rule made in this case, last Term, for setting aside execution, should not be rescinded, unless the defendant would consent to stay proceedings in an action brought by him in the Court of Exchequer. It was proposed to obtain this rule on such terms as the Court should think it right to impose. It appeared, from the affidavit supporting the application, that in the last Term, the Court had set aside an execution issued by the gular proceed- plaintiff against the defendant, pursuant to a judgment signed on a warrant of attorney, given by the defendant to the plaintiff. The ground of setting aside the execution was, that the terms of the defeasance had not been complied with, in making a demand of the sum secured by the warrant of attorney, after signing judgment, and previous to suing out execution. The rule for setting aside the execution was made absolute, without costs, and no terms were imposed on the defendant that he should bring no action. Since that, the defendant had commenced an action against the plaintiff, in the Court of Exchequer. The object of the present application was, that the defendant might be restrained in that action. When the rule was disposed of last Term, the Court might have imposed terms to that effect. In the case of Cash v. Wells (a), it was intimated by the Court, that setting aside irregular proceedings, must be granted to a defendant ex debito justitiæ; and, therefore, no interference could take place with the defendant's right of action accruing, in consequence of the plaintiff's improper proceedings. There, however, the execution had been issued contrary to good faith. That, consequently, distinguished the case from the present. Here the execution had been improperly issued, (a) 1 B. & Ad. 375. merely in consequence of a mistake in the construction of a defeasance to a warrant of attorney. In Lorimer v. Lule (a), it appeared to be the opinion of the Court, that under such circumstances as those which the affidavit disclosed, the defendant was not entitled to set aside an execution ex debito justitiæ, but that a discretion might be exercised with respect to the terms on which would interfere. PATTESON, J.-This certainly was a case where the Court set aside the execution on the warrant of attorney, for a mere mistake as to the construction of the defeasance. It may be, that the real intention of the parties was dif ferent from the construction put on it by the Court, for that is not an uncommon case, but the Court was obliged to construe it, as well as it could, from the language used. This case, therefore, is not of the same nature as one where proceedings are set aside because they are contrary to good faith; that is, not of the same nature morally, but it is the same in point of practice; for if a proceeding is irregular a party has a right to have it set aside. The term, however, of so doing, is a different matter, that being a thing in the discretion of the Court. As regards the costs, I have always thought that the rule laid down in the case of Cash v. Wells was the right one, and that the grounds on which the Court will proceed in such cases are there properly stated. But much impression was made on my mind by the other case of Lorimer v. Lule, and it seems that in that case the Court took a larger discretion. I cannot, however, go to the length of saying that the Court can direct that the defendant shall be restrained from bringing an action in this case; but, at all events, an application for that purpose ought to have been made at the time of the former rule being disposed of, and I do not see how it is possible that I can do anything now. The (a) 1 Chit. Rep. 134. 1839. ABBOTT v. GREENWOOD. 1839. ABBOTT v. GREENWOOD. action has been commenced in another Court, and I cannot, as it is conceded, stay the proceedings in that action. What can I do then? I have not got the costs to work with, as the rule was made absolute without costs, so that I cannot act, by means of the discretion of the Court, as to them; the screw, if I may so term it, is taken from me. All I could do would be to grant a rule conditionally, that unless the defendant will consent, that on payment of all costs, the proceedings in the action should be stayed-the plaintiff should do what? What alternative could I impose? The only one I can suggest, would be to rescind the rule for setting aside the execution. But then I cannot do that, for as I have said before, the Court was bound to grant that rule, it being a matter of right. I cannot, therefore, grant any rule in this case. Rule refused. A defendant cannot compel a plaintiff, who is a lieutenant in the Navy, and holds the offices of port captain and harbour master, in the island of Barbadoes, to give security for costs. It is not necessary that it should appear on the face of the plaintiff's afhdavit, that he is an Englishman. EVERING V. CHIFFENDEN. OGLE shewed cause against a rule nisi, obtained by Channell, for compelling the plaintiff to give security for costs, on the ground that he was resident abroad. The affidavit on which cause was shewn, stated, that the plaintiff was a lieutenant in Her Majesty's Navy, and held the offices of port captain and harbour master, in the Island of Barbadoes, under the British government. The performance of the duties attached to those latter offices rendered his residence abroad necessary. Being thus absent from the country, on account of his official capacity, he was not compellable to give security for costs. The case of O'Lawler v. Macdonald (a), was cited, in which it was held, that a British officer, serving abroad, even under a (a) 8 Taunt. 736; 3 Moo. 77. |