Shute v. Gould — 4 Del. 203

Majority

p. 203

JAMES SHUTE and wife vs. BENJAMIN GOULD, for the use of BAUDUY SIMMONS.

Headnote

Any justice of the peace of the county may take and' certify- affidavits, to be used in, court as the foundation of a motion to the court.

The Court, on motion, struck off the use endorsed on a judgment by husband and wife-in favor of the assignee of the wife, though the bond was to the husband and wife; and the survivor. The bond- vests in the husband entirely during coverture.

Judgment in debt without writ.

Mr. Patterson

obtained a rule to show cause why the use-in this; ease should not be-struck out, founded on.an affidavit of James Shute;taken before Thomas McDowell, Esq.,.one of the. justices of the peace for New Castle county.

Mr. Whitely

objected to the affidavit,, that it was improperly taken; before any one other than the prothonotary; and if a justice of the peace could administer an. oath for such a purpose, that it did nob appear in this case that McDowell was a justice-of the peace, as he-did not take the affidavit in his official: capacity, or certify it under his official signature.

replied, that the objection was too late. That a jus-

tice of the peace may administer an oath in any proper case an<J take and certify such an affidavit as this. That the evidence of

p. 204

the official capacity of Thomas McDowell is of record in the recorder’s office; and will be noticed by the court without proof.

Patterson, for the rule.

Whitely, contra.

overruled the objections to the affidavit except as to the official signature of the magistrate, which they allowed to be amended ; and, in the mean time, went on with the case.

It appeared on the evidence, that on the 18th of March, 1844, a bond was given by Benjamin Gould to James W. Shute and Elizabeth, his wife, or the survivor of them,.for $100. Shute and his wife separated, and she went off with an adulterer; and having clandestinely obtained possession of the bond, she sold it to Frederick Leonard, Esq., in July, 1844, and assigned it before one witness. Mr. Leonard assigned it in the same way to Bauduy Simmons, on the 8th of August, 1844; when the judgment was confessed at the suit of James Shute and wife for the use of Simmons.

On this state of facts the court made absolute the rule for striking out the use. The bond vests in the husband during his life. A married woman can have no right to personal property during coverture; it vests in the husband. (Chitty on Cont. 176; 2 Harr. Rep. 41 ); Ibid 74; 3 Ibid 87.)

Rule absolute—use stricken out.