1834. May 23. The writ of capias, and writs which purport to be a continuance of it, must state the place where the defend.. ant resides, and, if that be unknown, the place where he is supposed to reside. ROBERTS v. WEDDERBUrne. N this case, after a capias and alias had been issued, describing the Defendant as of Chesterfield Street, May Fair, in the county of Middlesex, he was detained upon a pluries capias, in which a blank was left for his place of residence. The service of this pluries capias was set aside by an order of Bosanquet J., because the writ did not disclose the actual or supposed residence of the Defendant, as required by the schedule (Form No. 4.) of the uniformity of process act. Wilde Serjt., upon an affidavit that, between the issuing of the capias and pluries, the Defendant had quitted his residence in Chesterfield Street, and, as it was believed, had gone abroad, and that the Plaintiff was unable to discover his residence, -obtained a rule nisi to discharge the order made by Bosanquet J. Merewether Serjt., who shewed cause, contended, that the act was imperative, and that there could be no sufficient reason for omitting to insert a supposed residence where the actual abode of the party is unknown. Wilde. The act is remedial; and was passed to facilitate the access to justice by the removal of technical obstructions. It ought, therefore, to receive a liberal construction; and, in matters which are not of importance to the parties, must be considered as directory only, not imperative. It must be altogether immaterial to the Defendant whether his residence is stated in the IM & Welr 306 writ or not. But, if it were material, lex neminem cogit TINDAL C. J. In this case, the Defendant has been arrested upon a pluries writ of capias, wherein there is a blank left for his place of residence, after a capias and alias had been issued, describing the Defendant as of Chesterfield Street, May Fair, in the county of Middlesex. The question which has been argued before us has been, whether service of the present writ is irregular and ought to be set aside; and it is the opinion of a majority of the Judges, that such is the case. The act for uniformity of process enacts, by section 4, that where it is intended to arrest the Defendant, the process shall be by writ of capias, according to the Form No. 4., contained in the schedule; and, upon reference to that form, it is clearly intended that the residence of the party shall be described, both in the writ of capias, and in those writs which purport to be a continuance of it. In what manner, and to what degree of strictness this description is necessary, will appear by section 1.; for although the enactment in that section relates to writs of summons only, it shews by analogy what was the intention of the legislature in this respect, viz., the place or county of the residence, or supposed residence, of the Defendant, wherein the Defendant shall be or shall be supposed to be; so that it is difficult to conceive any case in which the Plaintiff can be at a loss to comply with one of these requisites: at all events, that difficulty 1834. ROBERTS บ. WEDDER BURNE. 1834. ROBERTS บ. WEDDER- does not apply to the present case, where the two preceding writs, of which this is the continuance, had given him a description. Upon the ground that it is much better for the public to adhere, in all practicable cases, to the strict, close, literal compliance with the forms prescribed by the act, rather than to yield to particular cases of supposed hardship on individuals, when those requisites have not been formally complied with, we think the rule for setting aside Mr. Justice Bosanquet's order must be discharged, and that this writ and subsequent proceedings must be set aside for irregularity. Rule discharged. June 5. The actual or supposed place of the Defendant's residence must be stated in that part of the body of the writ prescribed by Schedule, No. 4., IN LINDREDGE v. RICHARD ROE. N this case Archbold obtained a rule nisi to cancel the bail bond, the Defendant's residence being indorsed on the copy of the writ served, instead of being inserted in the body of the instrument, according to the form given in the Schedule, No. 4., to 2 W. 4. c. 39. Austin, who shewed cause, contended that the specification of the Defendant's residence on any part of the writ was a substantial compliance with the act; and, 2 W. 4. c.39. in this respect, distinguished the present from the pre It is not sufficient to indorse it on the writ. ceding case of Roberts v. Wedderburne, where the defendant's residence was nowhere stated. The irregularity here, if any, was one from which no detriment could arise to the Defendant; and the statute would be a trap for suitors instead of a remedial enactment, if it were construed with such literal rigour. The statute prescribes the insertion of the Defendant's residence in the writ. The schedule indicates, for the place of insertion, the first place where the Defendant's name occurs, "We command you that you omit not, by reason of any liberty in your bailiwick, but that you enter the same, and take C. D. of." Suppose the Plaintiff were to omit the Defendant's residence there, and to insert it at the next mention of the Defendant's name," and him safely keep," "until the said C. D. of Parliament Street, in the county of Middlesex, shall, by lawful means, be discharged," &c. The Defendant's residence would be thus pointed out in the writ, and it could scarcely be contended the statute had not been obeyed. If so, an indorsement which gives the same information, on the same instrument, ought to be held sufficient. Sed per Curiam. That would not be a compliance with the form prescribed by the schedule, and the statute requires that such shall be the form employed. Where a form is given, there can be no difficulty in pursuing it; and it is best, in such a case, to enforce a literal compliance with the directions of the legislature. Rule absolute. (a) (a) See Price v. Huxley, 2 Cromp. & Mee. 211. 1834. LINDREDGE บ. ROE. 1834. May 23. Rents devised to a female durante viduitate, do not pass over to the remainder-man upon her cohabiting with one who, under an illegal marriage, holds himself out as her hus. band. And the party who thus holds himself out, is not, by so doing, estopped to shew the invalidity of the marriage. 10 Beav 124. ALLEN and Wife v. WOOD, Administrator of THE HE Plaintiff and his wife, who was the daughter of one Fuller, sought, by this action of money had and received, to recover the amount of certain rents and profits received by Grimmett, the intestate. At the trial the Plaintiffs put in the will of Fuller, by which he left these rents to his widow for life, provided she should continue unmarried, and, in case of her marrying again, they were to belong to his daughter, the Plaintiff's wife. The Plaintiffs then proved that, about ten years ago, Mrs. Fuller had been ostensibly married to Grimmett, after banns of marriage published in her maiden name; that she had lived with Grimmett till her death, about two years ago, when he attended her funeral in the character of husband, and erected a monument to her memory, with an epitaph, in which he styled her his wife. The lady, however, had concealed the marriage, and as long as she lived, continued to receive the rents as the widow of Fuller. Tindal C. J., before whom the cause was tried, considering, on the authority of Rex v. Tibshelf (a), that Mrs. Fuller and Grimmett had never been married, the Plaintiff was nonsuited, with leave to move to set the nonsuit aside: accordingly, Spankie Serjt. obtained a rule nisi to that effect, on the ground that Grimmett, having held out Mrs. Fuller to the world as his wife, his representative was now estopped to say there had been no legal mar (a) 1 B. & Adol. 190. |