against the defendant, Mohan, for want of a sufficient affidavit of defence: the sum due, to be liquidated by the prothonotary.

The affidavits of defence were held to be sufficient in: Irons v. Miller, 7 Watts 562; Hugg v. Scott, 6 Whart. 274; Christie v. Bohlen, 5 Barr 38; Christie v. Craig, 8 Harris 430; Mahon v. Gormley, 12 Id. 80; Gallinger v. Hoon, 1 Grant 59; Hutchinson v. Boggs & Kirk, 4 Casey 294; Imhoff v. Brown, 6 Id. 504; Hogg v. Orgill, 10 Id. 344; Hunter v. Reilly, 12 Id. 509; Thompson v. Clark, 6 P. F. Smith 33.

The affidavits of defence were held to be insufficient in: Knox v. Reeside, 1 Miles 294; Hill v. Bramall, Id. 352; Ogden v. Offerman, 2 Id. 40; Clapier v. Maupay, 2 Id. 137; Dows v. White, 2 Id. 140; Norman v. Hope, 2 Id. 142; Harris v. Mason, 2 Id. 270; Bacon v. Sanders, 4 Whart. 148; Zeibert v. Grew, 6 Id. 404; Dewey v. Dupuy, 2 W. & S. 553; Brick v. Coster, 4 Id. 494; Brown v. Street, 6 Id. 221; Moore v. Somerset, 6 Id. 262; Hill v. Gaw, 4 Barr 493; Wilson v. Hayes, 6 Harris 354 ; Lord v. The Ocean Bank, 8 Id. 384; Cochran v. Shields, 2 Grant 437; The Montour Iron Co. v. Coleman, 7 Casey 80; Bryar v. Henderson, 1 Wright 233; Black v. Halstead, 3 Id. 64; Coil v. The Pittsburg Female College, 4 Id. 439; Wood v. Watkins, 4 Id. 458; Blackburn v. Ormsby, 5 Id. 97; Frank v. M'Guire, 6 Id. 77; Luckenbach v. Anderson, 11 Id. 123; Dixey's Ex'rs. v. Lanning & Sill, 13 Id. 143; Anspach v. Bast, 2 P. F. Smith 356; Marsh v. Marshall, 3 Id. 396; The Philad'a. & Balt. R. R. Co. . Johnson, 4 Id. 127; Stoddard v. Robinson, Id. 386; Rockhill v. Burden, 1 P. L. J. R. 391; Pentland v. M'Clelland, infra, 164.

In the District Court of Allegheny County.

GALWAY v. BLACK AND WIFE.

(Vol. II., p. 10, 1854.)

A married woman may mortgage her separate estate for the debt of her husband; and her agreement, in the body of the mortgage, that a writ of scire facias may be issued before a year and a day from the time fixed for payment is valid.

THIS is a scire facias upon a mortgage of the wife's separate estate, to secure the debt of her husband. The mortgage was acknowledged by the parties before a magistrate, in the usual form, and contains the written consent of the wife, executed and acknowledged in pursuance of the provisions of the Act "To secure the rights of married women." There is a provision in

VOL. 1.-8

the mortgage, that in case of a default in the payment of the mortgage debt at maturity, a writ of scire facias may be immediately issued, and prosecuted to judgment and execution, for the purpose of collecting the said debt; and in virtue of this stipu lation, the scire facias in this case was issued, before the expiration of twelve months after the debt had become due and payable.

On the trial, the jury found a verdict for the amount due, subject to the opinion of the Court upon the following points, which were reserved, viz.:

1st. Whether a married woman has power to encumber her separate estate by mortgage, to secure a debt of her husband.

2d. Whether she may waive the privilege of the twelve months' delay allowed by Act of Assembly, and authorize the issuing of a scire facias immediately upon default of payment at maturity of the mortgage debt.

3d. Whether the waiver in this case is sufficient to authorize the scire facias.

The following opinion was delivered by

WILLIAMS, J.-The power of a married woman to mortgage her real estate for her husband's debt, was directly decided in Wilson v. Harrisburg Bank (unreported); Jamison v. Jamison, 3 Whart. 457; and incidentally recognized in Shiedle v. Weishlee, 4 Harris 134, Loudon v. Blythe, Id. 532, Wilson v. M'Cullough, 7 Id. 77, and Evans v. Meylert, Id. 402; and cannot now be questioned.

But if a married woman may mortgage, can she waive the privilege of the delay allowed by the statute, before any proceedings can be had upon the mortgage, and authorize the mortgagee to sue forth a writ of scire facias immediately upon default of the payment, at maturity, of the mortgage debt? It is ruled in Huling v. Drexell, 7 Watts 126, that a stipulation by the parties to a mortgage, that if the interest be not punctually paid at a particular time and place, the mortgagee may elect to consider the mortgage due and payable, and sue the same, is valid and binding; and that upon a failure to pay, according to the stipulation, the mortgage may be immediately sued. But in that case, the mortgage was not executed by husband and wife, and the question of the wife's ability to bind herself by such a stipu

lation, did not arise, and we are not aware that the point has been anywhere decided.

It was held in Dunarest v. Wynkoop, 3 Johns. Ch. 129, that a feme covert may mortgage her separate property for her husband's debts, and execute a valid power to sell the property in default of payment. In delivering the opinion in that case, Chancellor Kent said:

"There is no doubt that a wife may sell or mortgage her separate property for her husband's debts. Her deed, under her separate examination before a competent officer, is as valid, with us, as if she passed her estate by fine, at the common law. Nor do I perceive any objection to her competency to create a power in the mortgagee to sell, in default of payment. If she can convey upon condition, she may prescribe the terms; and it is fit and convenient that the mortgagor should be able to confer the power. It is one that is recognized and regulated by the statute, and is supposed, and always has been deemed, to be incident to the power to mortgage.”

The doctrine recognized and asserted in that case is equally applicable here. If a married woman may confer upon the mortgagee the power to sell in default of payment, and dispense with the necessity, or waive the benefit, of a bill for a foreclosure, there seems to be equal reason for holding that she may waive the benefit of the limitation allowed by our Act, and authorize the mortgagee to proceed immediately by scire facias upon default of payment, at maturity, of the mortgage debt.

Is, then, the waiver in this case sufficient to authorize the issuing of the scire facias before the expiration of the period limited and provided for in the act? The stipulation is in these words: "And the said Alexander and Margaret W., his wife, hereby covenant for themselves, their heirs, executors, administrators and assigns, that in case of a default of payment of the said debt or sum of money, on the day hereinbefore mentioned, a writ of scire facias may be immediately issued on this mortgage and prosecuted to judgment and execution for the purpose of collecting the said debt or sum of money, with its interest, &c., and all errors in so doing are hereby released, and the privilege of appraisement or stay of execution given by any existing Act

of Assembly, or which may be given by any future Act of Assembly, is hereby waived." There is no ambiguity in the language of this covenant. The authority to issue a writ of scire facias immediately upon default of payment, is not left to mere inference or construction, but is expressly given. It may be objected that a married woman is not bound by her covenant, entered into during coverture, and that the covenant in this mortgage cannot be enforced against the defendant's wife. It is undoubtedly a settled principle of the common law, that the wife is disqualified by coverture from entering into a contract or covenant personally binding upon her. But in Wotton v. Hele, 3 Saund. 178, cited in Dunarest v. Wynkoop, it was held, that if baron and feme grant land belonging to the wife, by fine, with covenant of warranty, and the grantee be evicted by paramount title, covenant lies, after the husband's death, against the wife, upon the warranty. And in Virginia, where a feme covert, executing a deed, is privily examined, her covenant therein for further assurance will bind her, and a specific execution of it will be decreed: Nelson v. Harwood, 3 Call 394. But in other states where the question has arisen, it has been differently determined; and it has been held, that a married woman cannot bind herself personally by a covenant of warranty. I am not aware of any case in which the wife's liability upon such a covenant has been expressly determined by our own Court. But in Chambers v. Spencer, 5 Watts 406, where the question incidentally arose, it was intimated, but not decided, that the doctrine of Wotton v. Hele is not applicable to cases of acknowledgments by married women of deeds made with their husbands, containing covenants of warranty.

But if it be conceded that the wife is incapable, by the common law, of binding herself by covenant, I am inclined to think that the rule in this respect has been changed by "the Married Woman's Act," and that since its passage a married woman may bind herself by covenant in a deed executed in accordance with the provisions of the statute. The act works a radical change in the condition of a feme covert, and she is now considered a feme sole in regard to her property. It is true that the husband must join in the execution and acknowledgment of the deed, in order to pass the wife's real estate; but if she conveys with warranty,

I can see no good reason for holding that she is not bound by the covenant. I am clearly of the opinion, that the wife is estopped by her covenant in the mortgage from alleging that the writ of scire facias was prematurely issued. The reserved questions are, for the reasons given, decided in favor of the plaintiff.

Affirmed, 12 Harris 18.

See Robinson v. Patterson, supra, 63; Magaw v. Stevenson, 1 Grant 402; Louden v. Blythe, 3 Casey 22; Bayler v. Commonwealth, 4 Wright 37.

In the Supreme Court of Pennsylvania.

KEY V. JETTO & HENDERSON.

(Vol. II., p. 18, 1854.)

A person charged before a committing magistrate with a crime, and discharged on his recognisance for a further hearing, is not privileged from arrest on civil process, while returning from the office of the magistrate.

AT Nisi Prius. Rule to show cause why service of capias should not be set aside.

The opinion of the Court was delivered by

WOODWARD, J.-The question in this case is whether a man charged with crime, before a committing magistrate, but discharged on his recognisance for a further hearing, is subject, whilst returning from the office of the magistrate, to arrest on civil process for debt. Such a man does not come within any of the classes of persons who are exempted by law, whilst going to, attending on, or returning from judicial proceedings in which they are interested. He is neither a suitor, witness, juror, nor officer of the Court. Is he then exempt?

This exemption is a privilege which is sometimes said to pertain to the Court, whose dignity, and the order and dispatch of whose business requires, that persons in attendance should be protected from arrest in other cases. This, however, can scarcely be the real ground of the privilege; for it forbids a summons as well as an arrest, and extends to persons attending before ar