the husband in this case left the wife, and went to reside at Rule absolute, for a new trial without costs. 1791. GOODRIGHT against SAUL. DEB PARTRIDGE against WHISTON, Clerk. Friday, July 8th. bond of resigna to resign for the patron's son to to keep the premises on the liv be presented, and ing in repair, be 18 Vez. 27. EBT on bond. The defendant in his plea craved oyer Q. Whether a of the condition, which (after reciting that the plaintiff tion with conhad presented the defendant to the rectory of Cranwick and the dition to reside, vicarage of Methwold, Norfolk, in order that he might be instituted and inducted; that the defendant had agreed to be personally resident in one or the other of those parishes, or in Northwold, which is contiguous to them both, without absence for 80 days in any one year, to serve the cure of those two parishes himself if his health would permit, and not to serve the cure of any other parish while he held this rectory and vicarage; that, as the two livings together were a comfortable provision for one clergyman, though neither of them alone were such, the defendant had further agreed never to resign one without the other; that the plaintiff had a son about 14 years of age, who probably would take orders, and might be desirous of taking these livings, and therefore the defendant had agreed in that event to resign both the livings on three months' notice to be given by the plaintiff, in order that the plaintiff's son might be presented thereto) was, that the defendant should perform his agreement, and keep in good repair the rectory-house and chancel of Cranwick, and the vicarage house of Methwold. He then pleaded, that before the execution of the bond, and before presentation, &c. it was corruptly, simoniacally, unlawfully, and against the form of the statutes, &c. agreed between the plaintiff and the defendant that the former should present the 1791. PARTRIDGE against WHISTON. the latter, in consideration that, if he should be admitted, &c. he would resign the two livings in case the plaintiff's son took priest's orders and was desirous of taking the livings, in order that the plaintiff's son might be presented, &c.; and that in · pursuance of such agreement, and for securing the performance of the same, the defendant executed the bond, &c. In another plea, after stating that these livings were benefices with cure of souls, and ought to be held by clerks for life, freely and without any controul of the patron, and that such clerks are not bound by the law of the land to resign such benefices at the request of the patron, he pleaded performance of every part of the agreement, except that respecting his resignation. To these pleas there was a general demurrer and joinder. The Court, understanding that it was intended to carry this (a) Dom. Prot. May 1783. Vid. 1 Bro. Ch. Ca. 98. Saturday, July 9th. After demurrer to a declaration of two counts against two defendants, because one of DRUMMOND against DORANT and Another. THIS was an action on the case against the defendants, for building before the plaintiff's house and obstructing his lights; but in the second count, only one of the defendants was named; and the defendants having demurred to the denamed in the last claration, the plaintiff entered a nolle prosequi as to the last count, plaintiff cannot enter a count; but them was not nol. pros. on that count, and proceed on the other. [1 Saund. 285. i B. & P. 157.] The Court were of opinion that in this stage of the proceed ings the plaintiff could not (a) enter a nolle prosequi. They however gave him leave to amend on payment of costs. Lawes in support of the demurrer. Wigley contrà. (a) H. Black. 108. OAKAPPLE OAKAPPLE on the Demise of GREEN against COPOUS. O .1791. Saturday, July 9th. at Midsummer from Michael sist on the insuf N the trial of this ejectment before Lord Kenyon, it appeared If notice to quit that the defendant held from Michaelmas, and that he was be given to a served with notice to quit at Midsummer; but when he receiv- tenant holding ed this notice, he made no objection that it required him to quit mas, he may inat that period of the year, but merely said, "I pay rent ficiency of the enough already; and it is hard to use me thus." The deferd- notice at the trial, though he ant's counsel pressed for a nonsuit, on the ground that the no- did not make any objection at tice should have been quit at Michaelmas; to which it was an- the time when it swered that the defendant had waved taking this objection when he received the notice, and that he ought not now to be permitted to turn round the lessor of the plaintiff on such an objection A verdict was taken for the plaintiff, with liberty to the defendant to move to set it aside, and to enter a nonsuit, in case the Court should be of opinion that the defendant was not precluded from making the objection. This matter being now moved, The Court were of opinion, that the defendant had not waved the objection; and therefore they made the rule absolute to enter a nonsuit; and BULLER, J. added, that whether the defendant had or had not assented to be considered as holding from Midsummer, would have been a question of fact for the jury, if there had been any evidence on this point; but, that so far from there being any evidence of such an assent at the time when he received the notice, his answer proved the reverse; for it was the answer of an angry man. Rule absolute. Bower in support of the rule. Erskine against it. was served. CAUDELL against SHAW. Saturday, out her husband THIS HIS action was brought by the plaintiff, a widow, in her A feme covert own right, for goods sold and delivered by her while she cannot sue withwas covert. It appeared on the trial before Lord Kiyon, that as a sole trader, by the custom of the trade was carried on solely by the wife in Cheapsile, without London, in the the interference of the husband, though he lived in the same superior courts house with her. The plaintiff obtained a verdict. The objec- [2 B. & P. 93.] tion made at the trial, and again insisted on in ths Court by Marryat, at Westminster. 1791. CAUDELL against SHAW. Marryat, who on a former day obtained a rule to shew cause Again in Roy BULLER, J. said, that this point was decided in this Court in the year 1773; and he read the following note: "Read v. "Frances Jewson, H. 13 Geo. 3. B. R. Mr. Cowper and Mr. "Buller shewed cause last term against a rule obtained by the assignees of the defendant, who was a bankrupt, for setting "asice a judgment and execution had thereon. It appeared "that the defendant was the wife of one Charles Jewson, and "was a sole trader by the custom of London; and that 66 66 . being indebted to the plaintiff' in 9000l. she entered into "a bcnd, in which she was described milliner, citizen, and "sole trader;' and also executed a warrant of attorney to "enter up judgment on the said bond, which was entered up accordingly, and a fieri facias sued out, and the de"fendant's goods taken in execution. In the judgment it was "stated that the defendant was a feme covert, sole trader; and "that the money (mentioned in the bond) was advanced to the "defendant touching her craft. The objections to the judg❝ment taken by Mr. Wallace and Mr. Davenport, in support of (b) 3 Keb. 302. (a) 2 Keb. 583. "the 66 1791. CAUDELL against SHAW. Vide Milner v. vol. 631. "the rule, were, that the judgment was irregular, it not being "entered pursuant to the authority; that the husband ought to "have been impleaded jointly with the wife, though execution "must be against the wife only: and that the action was not "maintainable in this Court, but ought to have been brought in "the Court of the city of London: and they said that Wilmot, "J. and Yates J. laid it down upon a former occasion, that "an action founded on the custom of London (like the present) "must be brought in the courts of the city of London, and no"where else; and they urged that if the Court could not give "relief to the assignees (who were now interested in the ques- Milner, ante, 3 "tion) upon motion, they would be without remedy; for though น writ of error would lie, yet the husband must join, and the "assignees could not compel him so to do. The Court said, "this was a new case; that the husband alone could be preju"diced by the judgment, and had a right to bring a writ of error "to reverse it: but if he acquiesced, they were inclined to think "the judgment ought to stand; however, they ordered it to ❝ stand over to hear what the husband said. This matter com"ing on again this term, and the husband appearing, and de"claring he consented to the motion, Lord Mansfield observed, "that this was an application to set aside a judgment entered "up without authority. In the bond the defendant is called "milliner, citizen, and sole trader;' but no mention is therein "made for what the debt is. The warrant of attorney is to con❝fess judgment on that bond, and judgment is confessed on a "long declaration, stating several facts not mentioned in the "bond, as the custom of London respecting a feme covert sole "trader, and that the money mentioned in the bond was ad"vanced to the defendant touching her craft; therefore there " is no authority to enter up the judgment in the manner in "which this is entered. No instance hath been shewn where feme covert sole trader can execute a bond; she is liable to "simple contract debts, but cannot give a bond; if she could, she "might bind her heirs, if she had real assets, which certainly no "custom can warrant. An infant is liable for necessaries, but "cannot give a bond for them. A married woman cannot be made "defendant without her husband; and if she cannot (and no case has been cited to shew she can) she cannot give a war" rant of attorney to confess a judgment. The mode of execution " is a commitment to prison, though judgment is against the "goods. This judgment is entered up without authority, and "must be set aside. Aston, J. The custom seems to operate on a "simple |