and resided with the defendant as his wife within the kingdom of England, to wit, at &c. Demurrer and joinder. Mr. Butt, in support of the demurrer.-There is nothing in this replication to shew the defendant's liability to be sued as a femme sole: for, it is consistent therewith that she was married here, and it does not appear that the husband either is in exile, or is an alien enemy or civilly dead, or intends permanently to reside in France. In Marshall v. Rutton (a), a femme coverte was held incapable of contracting or being sued as a femme sole, although living apart from her husband, and having a separate maintenance. In Kay v. The Duchess De Pienne (b), Lord Ellenborough said: "If the husband has never been in this kingdom, the wife of an alien I think may be sued as a femme sole. That is The Duchess of Mazarine's case (c). I do not know whether it was distinctly brought to Lord Kenyon's attention that the Duc De Pienne had been living with the defendant as his wife within the realm. If so, I cannot subscribe to his opinion" (d). "When the husband has abjured the realm, or is exiled, he cannot return, and the case stands upon perfectly different principles." In Williamson v. Dawes (e), it was held that a mere allegation of the fact of the temporary absconding of the husband was not sufficient to impose on the wife the liabilities of a femme sole. In that case and in Ex parte Franks (f), all the authorities upon the (a) 8 Term Rep. 545. (b) 3 Campb. 124. (c) 1 Salk. 116, 2 Salk. 646. There the husband was an alien enemy. (d) Lord Kenyon had held, in Walford v. The Duchess De Pienne, 2 Esp. Rep. 554, that, where the husband of a married woman, a foreigner, went abroad, but de clared his intention of returning (e) Ante, Vol. 2, p. 352, 9 Bing. 292. (f) Ante, Vol. 1, p. 1, 7 Bing. 762. 1834. STRETTON บ. BUSNACH. 1834. STRETTON v. BUSNACH. subject are collected: and the result appears to be this, viz. that the wife is only liable to be sued as a femme sole where the husband is a foreigner who has never been in this country, an alien enemy, or is civiliter mortuus, that is, where he has been exiled or transported, or has abjured the realm. Mr. Comyn, contra.-The replication contains a sufficient answer to the plea,shewing that the husband, at the time of the contracts, was living separate from his wife, and abroad. The replication is the same as that pleaded in De Gaillon v. L'Aigle (g), where it was held that the wife was not liable to be sued, though her husband resided abroad and she traded and obtained credit as a femme sole, unless she represented herself to be a femme sole. [Lord Chief Justice Tindal.-Marshall v. Rutton was decided after the case of De Gaillon v. L'Aigle, and has always been considered as a leading authority.—Mr. Justice Gaselee.-In De Gaillon v. L'Aigle, there was nothing to shew that the husband had ever been in this country.] Here, the rejoinder only shews that the defendant's husband cohabited with her in this country from the 1st of May till the 1st of July, 1825. His absence abroad from that time to the present is pretty strong evidence of his residence there being permanent; and there is nothing to shew that he has any intention to return. PER CURIAM.-We think that the defendant is entitled to judgment upon this record. There should at least be something put upon the replication to shew that the absence of the husband is not temporary. Mr. Curwood prayed leave to amend. Granted, on payment of costs. (g) 1 Bos. & Pull. 357. DOE d. LAWFORD v. ROE. 1834. Monday, Court of Trinity, 32 Car. 2, requiring motions for judgment against the casual ejector, in Middlesex and London, to be made in one week after the first day of Michaelmas and Easter Terms, and within the first four days of Hilary and Trinity Terms, is still in force. ON the sixth day of this term Mr. Williams moved for The rule of this judgment against the casual ejector. He admitted that the rule of Trinity Term, 32 Car. 2, in this Court, seemed adverse to the application, requiring the motion for judgment to be made, in Middlesex and London, in one week after the first days of Michaelmas and Easter Terms, and within the first four days of Hilary and Trinity Terms. But, he submitted, that, although the late rules made for the purpose of assimilating the practice of the Courts had, probably through inadvertence, overlooked this particular rule; yet that, inasmuch as the lessor of the plaintiff was thereby led into error, the Court might, in the exercise of their discretion, permit the strict rule to be departed from in this instance. [Lord Chief Justice Tindal.—Mr. Tidd thus states the rule (a): "In the King's Bench, if the premises be situate in London or Middlesex, and the notice require the tenant to appear on the first day, or within the first four days of the next term, the motion for judgment against the casual ejector should regularly be made in the beginning of that term; and then the tenant must appear in four days, or the plaintiff will be entitled to judgment. If, however, the motion be deferred until a later period of the term, the Court will order the tenant to appear in two or three days, and sometimes immediately, in order that the plaintiff may proceed to trial at the Sittings after term: but, if the motion be not made before the last four days of the term, the tenant need not appear until two days before the essoin day of the subsequent term: and in a town cause the motion cannot be made in a term subsequent to that in which the tenant had notice to apIn the Common Pleas, it is a rule that the motion (a) Tidd's Prac., 9th edit., p. 1218. 1834. DOE d. LAWFORD v. ROE. should be made, in town causes, within one week next after the first day of Michaelmas or Easter Term, and within four days next after the first day of Hilary or Trinity Term." There certainly is therefore a difference (and probably the only one) in the practice of the two Courts on the subject that has not been noticed in the late rules; and a difference that ought not to be.] A rule nisi having been granted Mr. Watson now shewed cause.- Ignorance of the practice of the Court is the only reason assigned for the delay in making the motion. The affidavits in answer to the application shew this to be a case of peculiar hardship and vexation upon the tenant, the ejectment being brought for a supposed forfeiture incurred by reason of non-repair, and there being another action brought in the Court of King's Bench for the recovery of the same premises. Mr. Williams was heard in support of his rule. PER CURIAM.-An ejectment brought for a forfeiture is a sort of action in furtherance of which we should not feel disposed to violate any established rule. The tenant may have been lulled into a state of security by finding that no rule had been applied for within the time fixed by the practice of the Court. We think the rule must be discharged, but we do not think it a case in which the lessor of the plaintiff ought to be visited with costs. Rule discharged, without costs. PICKFORD and Others v. DAVIS. 1834. Monday, turnpike act, 13 Geo. 3, c. 84, THIS was an action of assumpsit for money had and re- By the general ceived by the defendant to the use of the plaintiffs. At the trial before Mr. Baron Bolland at the Spring Assizes for Buckingham, in 1833, a verdict was found for the plaintiffs, subject to the opinion of the Court upon the following case: the trustees of turnpike roads were empowered to demand and take for every waggon having the fellies of the breadth or gauge than six inches, and for the horses draw ing the same, one half more than the tolls which should be In Hilary Term, 1833, the plaintiffs, who were carriers, wheels of less brought this action to recover back the sum of 37. from the defendant, clerk to the trustees under an act of the 1 & 2 Geo. 4, c. lxxxv, passed the 28th May, 1821, intituled "An act for amending and more effectually repairing the highway between Hockliffe and Woburn in the county of Bedford, and for repairing the road leading through Woburn to Tickford Bridge in Newport Pagnell in the county of Buckingham," as received by the said trustees to the plaintiffs' use under the following circumstances: payable for the same respec- repealed the 13 act were em powered from and after the A van of the plaintiffs', on four wheels, having the fel- der any local lies of the wheels of less breadth or gauge than four inches and a half from side to side at the bottom or sole thereof, and drawn by four horses, on various days within three months next before the commencement of this action, 1st January, 1833, to take for any waggon having the fel lies of the wheels of less breadth than 44 inches, or for the horses drawing the same, one half more than the tolls payable by such local act for any carriage having the wheels of the breadth of six inches. By the 4 Geo. 4, c. 95, s. 5, it is provided, "that, where the trustees of any road should not, previously to the passing of the 3 Geo. 4, c. 126, have taken and collected the additional tolls directed by the 13 Geo. 3, c. 84, and the local act should not have provided a scale of tolls applicable to the road, such trustees should, from the 1st January, 1824, continue to take and receive for every waggon having the fellies of the wheels of less breadth than 4 inches, the same tolls as were by such local act payable in respect of such waggon;" and by s. 6, "that, where any local act should have a prescribed rate of toll in respect of the breadth of the wheels of carriages and where the additional toll authorized to be taken by the 13 Geo. 3, c. 84, should not have been collected and imposed, the trustees should, after the 1st January, 1824, continue to collect the tolls prescribed in the local act, and should not collect the increased toll under the 7th section of the 3 Geo. 4, c. 126. By a local act, 1 & 2 Geo. 4, c. lxxxv, a scale of tolls was prescribed, by which a toll of 44d. was imposed for each horse drawing any waggon drawn by four horses, whether the fellies of the wheels were of the breadth of six inches and upwards or less. The trustees under this act had, previously to the passing of the 3 Geo. 4, c. 126, taken and collected the additional toll directed to be taken by the 13 Geo. 3, c. 84:-Held, that such increased toll (62d.) was properly demanded; the case not falling within the exemptions contained in the 5th and 6th sections of the 4 Geo. 4, c. 95. |