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1832.

COURT OF KING'S BENCH.

Sitting in London, in Hilary Term, 1832.

BEFORE MR. JUSTICE JAMES PARKE.

not his resi

SEDGWICK V. JAGER.

Jan. 30th. ASSUMPSIT on a bill of exchange, drawn by the de- Where a bill is fendant on one Isaac Malden, and made by him, in the writ- by the acceptor ten acceptance, payable at the house of a person named at a particular

place, which is Taylor.

dence, proof of It was proved that the bill was presented at Taylor's presentment at house, which was not the acceptor's residence, and no- that place is not tice of dishonour was given to the defendant, the drawer; dence of disho

nour in an action but there was no proof of the handwriting of the ac- against the

drawer, without ceptor.

proof of the acceptor's hand

writing. Mr. Justice J. Parke was of opinion, that, without such proof, there was not evidence of dishonour; as, to make out dishonour, there must be presentment at the acceptor's residence, or at such other place as he by his acceptance appointed instead; and it did not appear, without proof of his handwriting, that he did appoint any other place.

Nonsuit.

Steer, for the plaintiff.

[Attornies-Allen, and Jager.]

1832.

Reed v. Moore. Jan. 30th. To make a hus- ASSUMPSIT for board and lodging, furnished to the band liable for his wife's board defendant's wife, and her servant, and a lap-dog. and lodging at

The claim for the lap-dog was disallowed, as not being the house of a third person, for necessaries. With respect to the other part of the when the wife leaves in case, it appeared that the defendant and his wife had consequence of a dispute, it

quarrelled, and she took out a warrant against him for an must be shewn, assault; but the charge was abandoned, on a negotiation either that his conduct render. being entered into. After this, they quarrelled again; ed it improper for her to live

and, upon the wife's attempting to leave the room, for the with him, or that he knew

purpose of calling for the landlord to interfere, the dewhere she was fendant laid hold of her, to prevent her; and, according to residing, and did not make his own admission, he was very much annoyed, and used any offer to take her back, except

more violence towards her than he should otherwise have upon conditions done. In consequence of this, she left his house, and which he had no right to went to reside at the house of the plaintiff, It appeared, make.

that the defendant was aware that his wife was living at the plaintiff's house, but made no offer to take ber back, and was not willing to receive her, unless she would consent to give up a certain portion of the property which was settled upon her.

Mr. Justice J. Parke, in summing up), said—If it had depended on the question of violence, one should have wished for some more evidence, as a wife is bound to live with her husband, unless he makes it improper for her to do so. The defendant might be only keeping his wife from doing something which she had no right to do. But it seems he made no offer to take her back, except upon a condition, that she should give up some of her property. Now, this he had no right to do. A husband is bound to maintain his wife, whether she has money or not. I think, therefore, on these facts, that you may find your verdict for the plaintiff.

Verdict for the plaintiff. Cary, for the plaintiff.

[Attorney-Begbie.]

CASES

AT

NISI PRI U S.

COURT OF KING'S BENCH.

Sittings at Westminster after Hilary Term, 1832.

BEFORE LORD TENTERDEN, C. J.

1832

Rex v. Eliza Smyth and Three Others.

Feb. 181. INDICTMENT for a forcible entry into the house of an indictment

for a forcible enWilliam Henry Carmichael Smyth. Plea-General issue. try cannot be It appeared that the defendant Mrs. Smyth was the wife supported by

evidence of a of the prosecutor Mr. Carmichael Smyth, and that she, mere trespass, under the description of Mrs. Anne Smyth Carmichael, be proof of such

force, or at least had, on the 12th of November, 1829, taken the house in such shew of question for her own residence; and that Mr. Smyth and force, as is cal

ance.

culated to pre

vent any resistIf a wife, separated from her husband, take a house of which the husband, with the landlord's consent, obtains possession :- Semble, that if the wife come with others and make a forcible entry into this house, she may be convicted on an indictment for a forcible entry, stating it to be the house of the husband.

If a married woman take a house, in which a burglary is committed, the house must be laid as the house of the husband, although she be living separate from him.

Where a constable entered a house with a warrant in his hand, and searched it, and for such entering and searching was indicted for a forcible entry:~Held, that his counsel might ask the witnesses for the prosecution what the constable said at the time as to whom he was searching for.

Where an indictment is tried at Nisi Prius, the nisi prius record does not shew what names were on the back of the indictment.

Where an indictment is founded on a written instrument, and where the instrument itself is the crime, it is receivable in evidence, although not stamped; but where the indictment is for an offence distinct from the instrument, and the instrument be only introduced collaterally, it cannot be received unless it be properly stamped.

VOL. V.

1832.

REX

SMYTH.

his servant, on the 17th November, had gone to the house with the consent of the landlord, and obtained possession of it, a man named Teresias being by them put into possession. It was also proved, that, on the 18th of November, Mrs. Smyth came to the house with two or three men, and knocked at the door; and that, on being refused admittance, Mrs. Smyth and one of the men got over the railings in front of the house; and the man, having broken a pane of glass, pushed down the upper sash of the window and got into the house, and he having opened a door, Mrs. Smyth went in and told Teresias that he had better go out peaceably, or they would put him out. Teresias then went out, leaving Mrs. Smyth and her party in possession.

C. Phillips, for the defendants Goddard and Schofield, who were constables, applied to have Mr. Smyth called as a witness, as his name was on the back of the indictment.

Lord TENTERDEN, C. J.-The original indictment is not here, and the nisi prius record does not shew what names were on the back of the bill.

Mr. Smyth was not called (a).

Cockburn, for the defendant Mrs. Smyth.--I submit that my client must be acquitted. She is indicted as the wife of the person whose house she is charged with having entered. It is clear, that no man could be indicted for a forcible entry into his own house, neither, as I submit, can a wife be indicted for a forcible entry into the house of her husband. Mr. Serjeant Hawkins says (d)—“ It seems

(a) On the trial of an indictment for a forcible entry under the statute 8 Hen. 6, c. 9, and 21 Jac. I, c. 15, the party dispossessed is not a competent witness for the prosecution. Rex v. Wil

liams, 4 M. & R. 471, and 9 B. & C. 549.

(6) i Curw. Hawk. B. 1, c. 28, s. 32, citing Moore, 786; Cro. Jac.

2 heb. 495.

18;

1832.

Rex

SMYTH.

clear that no one can come within the intention thereof (i.e. of the statutes relating to forcible entry), by any force whatsoever done by him in entering into a tenement whereof he himself had the sole and lawful possession both at and before the time of such entry, as by breaking open the door of his own dwelling-house, or of a castle which is his own inheritance, but forcibly detained from him by one who claims the bare custody of it, or by forcibly entering into the land in the possession of his own lessee at will.” That being so, I submit that the possession of the wife and the husband is identical, as the common law takes no notice of any separate possession of the husband and wife. Indeed, the possession of one is not only the possession of the other, but it is the duty of the wife to be in the house of her husband, and as she cannot be a trespasser in entering the house of her husband, she cannot be guilty of this offence, as it includes a trespass. Great inconvenience would be sustained if such indictments as the present could be preferred, as the wife could have no remedy against her husband for malicious prosecution.

Lord TENTERDEN, C. J.-If a married woman takes a house, and a burglary be committed in it, it must be laid as the house of the husband, although she be living separate from him; therefore, this house is properly laid as the house of Mr. Smyth. If it was a mere trespass, I quite agree with you, that the wife could not be a trespasser; but if she comes with a number of persons, and with the strong hand, I have great doubts, because it tends to a breach of the peace. However, you can have the advantage of this point hereafter, if it should become necessary.

A witness for the defendant stated, that the defendant Goddard searched the house, having a warrant in his hand, Schofield being with him.

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