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 TERM. S. MICH. 10 WILL. 3. B. R. CARTHEW, 467.

[467] HARRISON versus CAGE & UX'.

(Referred to, Finlay v. Chirney, 1888, 20 Q. B. D. 505.]
1 Salk. 24, S. C. 5 Mod. 411. 1 Danv. 50, p. 20, assumpsit upon reciprocal promises
between a man and woman, to marry each other, and the woman refused.
Assumpsit, &c. against the defendant and his wife, upon a special promise of the
woman before marriage, which was, that in consideration the plaintiff Harrison being
a bachelor, had on such a day and place promised to take her (whilst sole) to wife,
she whilst she was sole, &c. promised the plaintiff to take him for her husband ; then
he averred in fact, that he had tendered himself to marry her, and had requested her
to marry him, but that she refused, and afterwards married the defendant.
Upon non assumpsit pleaded, the cause was tried at the assises in Norfolk, and
there was a verdict for the plaintiff, and 4001. damages, the woman being worth
30001. when the plaintiff courted her, and afterwards by the death of her brother
worth double that sum.
And now it was moved in arrest of judgment,
(1.) Because this action would not lie upon the promise of marriage made by the
woman, for the law doth not intend, that the man is advanced by marriage; and
therefore such a promise of marriage to him is of no consideration in law, and by
consequence no action can be founded thereon.
But 'tis otherwise where a man promiseth to marry a woman, because in the eye
of the law marriage is an advancement to the woman.
(2.) This promise is void for incertainty, for there was no certain time agreed on
when the marriage should take effect.
To which it was answered and so resolved per Curiam, that here were reciprocal
promises; and therefore as her promise to him was a good consideration to make
his promise obligatory, so by the same reason his promise to her was a sufficient
consideration to make her promise binding in this case as well as in any other mutual
agreements.
And the Court did not allow that distinction between the advancement of a man
and of a woman in marriage, and that this was a good promise, tho' the certain time
of marriage was not agreed on, especially since the plaintiff averred that he had
offered to marry her, and that she [468] refused, which (in this case, was necessary
to be done to intitle the plaintiff to this action.
Nota; It had been moved before for a new trial, because of the excessive damages;
but upon reference to the Chief Baron Ward who tried the cause, he certified that
the promise of the woman was well proved, and that the damages were more than he
expected, but that he did not think them so excessive as to set aside the verdict.
So the plaintiff had his judgment.

GOODWIN versus BEAKBEAN.

How many days'there ought to be between the teste and return of a sci' fa'.
1 Salk. 599, pl. 4, 7, 602. 1 Lutw. 26. 6 Mod. 146.
Scire facias against an administrator upon a judgment obtained against the
intestate; this writ was teste 24 Octob. returnable die Lune prox' post mensem
Michaelis, which was the 31 day of October, and an alias scire facias was taken out
teste upon the day of the return of the first writ, (viz.) 31 Oct. which last writ was
returnable die Lunge prox' post crastinum animarum, which was the 7th of November.
Upon two niehils returned judgment was against the defendant by default; and
thereupon the intestate's goods were taken in execution by virtue of a fieri facias.
And now it was moved to set aside the said judgment, and to have restitution,
because these writs of scire facias were irregular; for between the teste of the first
and the return of the last there were not fifteen days exclusive of the very days of
the teste and return.
To which it was answered, that these writs were as they ought to be, for there
CARTHM. W6. TERM. S. MICH. 10 WILL. 3. B. R.

are eight days inclusive between the teste and return of each writ; and the second
writ must always bear teste upon the same day on which the first was returnable;
and therefore of necessity that day must be reckoned twice.
Besides, no manner of objection can be made to the writs singly ; therefore if each
writ is good as it stands alone, the putting them together shall not make them
irregular by a joint computation of the time.
[469] And the whole Court was of that opinion; so the plaintiff had judgment.

HOLLAND versus SERJEANT.

1 Salk. 98, S. C. 1 Danv. 681, p. 11.

A declaratiou was delivered to the defendant in custody of the Sheriffs of
London for want of bail, according to the * statute; and thereupon the plaintiff
proceeded and obtained judgment against the defendant being still in custody of
the sheriffs.
And now it was moved for a supersedeas to discharge him out of prison upon
filing common bail, because two terms were past since the plaintiff had judgment, and
the plaintiff had riot in that time charged him (the defendant) in execution; and his
counsel insisted, that since by this statute, the plaintiff is enabled to declare against
the defendant in custody of the sheriff, 'tis the same in reason with the practice
before ; where any plaintiff declared against the defendant in custodia of the marshal,
if he had judgment, and did not charge him in execution within two terms afterwards,
the defendant had a supersedeas upon filing common bail to the action.
And the Court being of that opinion, a rule was made for a supersedeas.
Nota; The statute is, that in all declarations against prisoners by virtue of any
process out of B. R. it shall be alledged in custody of what sheriff, bailiff, &c. such
prisoner is at the time of the declaration delivered; which allegation shall be as
effectual as if the prisoner was in custody of the marshal, &c.

THE KING versus ALBERT ALVERSTON.

2 Salk. 483, S. C. 5 Mod. 419, S. C. Order to charge a man to be the father of

a bastard begotten on a married woman, but doth not say that her husband was
beyond sea forty weeks.
By an order of two justices, &c. of Middlesex, the defendant being adjudged the
reputed father of a bastard child, was thereby charged to maintain it; which order
was special.
Ss. It recited, that Mary Spence, the wife of Jonathan Spence mariner, was
delivered of a male bastard child, and that it appeared to them upon oath of, &c.
That Jonathan Spence her husband was in the King's service at Cadiz in Spain, and
not within the King of England's [470] dominions, at the time when the said child
was begotten or born; which order was confirmed upon an appeal.
And now it was moved to quash both the said orders, because the statute * 18 Eliz.
concerning bastard children doth not extend to this case, for the justices have no
jurisdiction but where the child was born out of lawful matrimony.
If this woman had been delivered alone of a child without crying out for help, 'tis
certain this would not have been felony within the statute 21 Jac. cap. 27, tho' no
proof could be made that the child was born dead.
(2.) 'Tis impossible there should be a reputed father when there is a known father
of whom the law takes notice ; and tho' this child may be a bastard in regard to any
right of inheritance, yet that is not sufficient to bring it within the conusance of the
justices of the peace, by virtue of this statute.
* 4 & 5 Will. c. 21. If after judgment a prisoner is not charged in execution
within 2 terms, he shall have a supersedeas, &c.
* 18 Eliz. cap. 3.