the landlord done any act to discharge the leffee? Even in cafes where the landlord has exprefsly confented to receive the aflignee as his tenant, the original leffee has always been held liable on his covenant; and those are, in my opinion, much stronger cafes than the prefent, where the affignees are forced upon the landlord without his confent. This is like the cafe of an execution; and indeed in fome of the books it is called a statute execution. In every view of the question, therefore, I am clearly of opinion that this case was properly decided in the Court of Common Pleas, and that that judg ment ought to be affirmed.

Judgment affirmed.

TUBBS V. HARRISON and Son.

On the trial of this action it appeared that the Defendants were father and fon, and differences arifing between the fon and his wife, they feparated, and the Defendants covenanted to pay the wife an annuity of 50l. a year, and to pay all the debts contracted by her, which her husband was by law liable to pay. That the wife at this time had contracted a debt to the Plaintiff, for money paid and laid out for neceffaries for one John Perrin, her infant fon by a former husband, at her requeft.

A verdict was taken for the Plaintiff, which now came before the Court, fubject to the queftion, Whether the hufband is bound to pay this debt for the maintenance of his wife's child by a former hufband?

LORD KENYON, Ch. J.-By the record of the Cafe of Rex v. Munnay, Stra. 190, it clearly appears that the wife was alive when the order was made. The Court in that cafe reverfed the order of maintenance, on the ground that the ftatute of Elizabeth only extends to natural relations. Therefore, on the authority of that cafe, we are of opinion that the husband is not liable for the expences of maintaining the wife's child by the former husband; and confequently that thofe articles in the account must be difallowed.

DE

DE. MORANDO V. DUNKIN.

The Plaintiffs having taken out a capias against the Defendants, fent it to their agent in Cornwall, who applied to the Sheriff for a warrant on it, directed to his own Clerk, by reason that the Under-Sheriff was concerned as Attorney for one of the Defendants. The Sheriff accordingly granted a warrant to the Clerk, and the Defendant was arrested and escaped; and now upon a motion to set aside the rule for the Sheriff to return the writ, it was contended that the Plaintiffs had no right to a return of the writ, as the Sheriff had granted the warrant to a special bailiff at the particular request of the Plaintiff.

LORD KENYON, Ch. J.-The rule, which has been obtained, to require the Sheriff to return the writ, cannot be fupported. The Plaintiffs fay, that, becaufe the bailiff, nominated by them, and at their fpecial request, has mifconducted himself, the Sheriff fhall be anfwerable for his mifconduct: but it feems to me that it was a groundless application. The cafes cited are not applicable to the prefent: the question in rates v. Frecleton was, Whether or not the agent were authorized to receive the debt? and the Court very properly determined that he exceeded the power given to him. But here the agent was empowered to put the writ in force, which certainly includes the form and the mode of executing it.

BULLER, J.-The plaintiffs have acted wrong throughout. In the firit place the application to the Sheriff was out of the ordinary courfe of bufinefs; he is ignorant of the forms. of the office, and though he be refponfible for the acts of his Under-Sheriff, yet this kind of bufinefs is entirely conducted by the Under-Sheriff. The application too was for a favour, it was to indulge the plaintiffs with the nomination of their own bailiff, who perhaps fuffered the party to escape in order to charge the Sheriff. And now the plaintiffs contend that, by this contrivance, they are entitled to maintain an action against the Sheriff for the purpose of driving him to bring another action against their own agent. But this question does not arife now for the first time; it

has

has been repeatedly held that if a fpecial bailiff be appointed on the nomination of the Plaintiff, the latter must take the confequence of the acts of the former: the Court has confidered them as the acts of the Plaintiff himself, and has refused to call on the Sheriff to return the writ in fuch cafes.

Rule abfolute.

NUTT V VERNEY,

The Defendant being infane was arrefted. Motion to difcharge him upon Common Bail.

The Court faid.In the cafe of Kernot v. Norman (T. R. 11 279), the defendant became infane after the arrest; but we cannot interfere in this cafe any more than in the other.

Rule refused.

BENNET V. NICHOLS.

The question was, How many days were allowed to a Defendant to put in bail in error?

By the Court. He has four clear days; and in this Cafe the Judgment being figned on Monday, the Plaintiff is not entitled to fue out execution till Saturday.

HOUST

HOUSE OF LORDS,

FEBRUARY 3, 1791.

MINET and FECTOR, against GIBSON and JOHNSON, in Error.

This action was tried before Lord Kenyon, at Guildhall, in the Michaelmas Sittings, 1789. There perhaps never was tried a cause, in the event of which a larger property was involved. Upwards of a million of money was fuppofed to lie in bills drawn in a manner fimilar to the prefent.

Livefey and Co. drew a Bill. of Exchange on Gibson and Johnson, for £.721 55. dated February 18, 1788, and payable at three months, to John White, or Order, who was a fictitious payee.

This bill was accepted by the Defendants, and discounted by the Plaintiffs: who, of courfe, in the character of indorfers, for a full and valuable confideration, brought this action against the acceptors.

THE DECLARATION.

London. To wit, Thomas Gibfon, late of London, Merchant, and Jofeph Johnfon, late of the fame place, Merchant, were attached to answer Hugh Minet and James Peter Fector, in a plea of trespass on the cafe. And whereupon the faid Hughes and James Peter, by Edwin Dawes, their Attorney, complain.

Firft count. For that whereas certain perfons using trade and commerce as co-partners, in the co-partnership name and firm of Livefey Hargreave, and Company, on the 18th day of February, in the year of our Lord 1788, at Manchefler, to wit, at London aforefaid, at the parish of St. Mary-le-Bow, in the Ward of Cheap, according to the ufage and cuftom of merchants, made their certain Bill of Exchange in writing, the hand of one of the faid co-partners, on their joint account, and in their co-partnership name and firm, to wit, Livefey, Hargreave, and Co. being thereunto fubfcribed, bearing date the fame day and year aforefaid, and directed the fame Bill of Exchange to the faid

Thomas

1

Thomas Gibson and Jofeph Johnfon, by the names and defcription of Meffrs. Gibfon and Johnfon, Bankers, London, and thereby required the faid Thomas Gibson and Jofeph Johnson, three months after date, to pay to Mr. John White, or order, £. 721 55. value received, with or without advice; they the faid Livefey, Hargreave, and Company, then and there well knowing that no fuch perfon as John White, in the faid Bill of Exchange mentioned, exifted. Upon which faid Bill of Exchange, afterwards, to wit, on the fame day and year aforefaid, at London aforefaid, at the parish and ward aforefaid, a certain indorfement in writing was made, purporting to be the indorfement of John White, named in the faid bill, and to be fubfcribed with his hand and name, and which faid indorfement purported to require the faid fum of money, in the faid Bill of Exchange contained, to be paid to the faid Livefey, Hargreave and Company, or their Order. And the faid Bill of Exchange, being fo indorfed as aforefaid, they the said perfons ufing trade and commerce in the name and firm of Livesey, Hargreave and Company, as aforesaid, afterwards, to wit, on the fame day and year aforesaid, at London aforefaid, at the parish and ward aforefaid, by a certain indorsement in writing, made upon the faid Bill of Exchange, and fubscribed with the hand and name of one Abfalom Goodrich, by procuration of the faid Livefey, Hargreave and Co. according to the ufage and custom of merchants, appointed the faid fum of money, in the faid Bill of Exchange contained, to be paid to the faid Hughes and James Peter, and then and there delivered the faid Bill of Exchange, fo indorfed as aforefaid, as well with the name of the faid John White, as with the name of the faid Abfalom, to the faid Hughes and James Peter; which faid Bill of Exchange, afterwards, to wit, on the fame day and year aforefaid, at London aforefaid, in the parish and ward aforefaid, according to the ufage and cuftom of merchants, was fhewd and prefented to the faid Thomas Gibson and Jofeph Johnfon, for their acceptance thereof; and the faid Thomas Gibson and Jofeph Johnfon then and there according to the ufage and cuftom of merchants, accepted the fame, they the faid Thomas Gibson and Jofeph Johnson then and there well knowing that no fuch person as John White, in the faid Bill of Exchange named, existed; and that the name of John White, fo indorsed on the faid Bill of Exchange, was not the hand-writing of any person of that name; by reafon whereof, and by force of the usage and custom of merchants, the faid Thomas Gibson and

Jofeph