the husband for the previous occupation of his wife dum sola. That was not an occupation by him or at his instance. Wherever there is a contract by the wife before marriage, and an action is brought after the marriage on that contract, the wife must be joined; for it does not otherwise appear how the husband becomes chargeable, and he may have no other notice of the debt. It is clear from the case of Naish v. Tatlock, that the occupation alleged must be proved; and if a party be sued for the occupation of another, it must be shewn that such occupation was at the Defendant's request. The cases with respect to the joinder of husband and wife are indeed in some confusion, and the rules, that, where the charges to which the wife is liable dum sola survive to her after the husband's death, husband and wife must be sued jointly; and that where they are sued jointly, the charge survives, do not much assist; for there are many cases in which they may join or be joined, or not, with equal propriety. The authority cited from Comyn only proves that a husband can be sued for rent on a lease to the wife dum sola, where the whole rent has accrued since marriage. But that is a case where debt is brought for rent arrear. Debt for rent lies either in respect of a contract or of the occupation, but an action for use and occupation lies for the occupation only, and the words of the statute (a) are strong to this effect; it therefore becomes material to ascertain what was held and enjoyed, and at whose request. But here was no request by the husband for the occupation previous to marriage, and it is admitted the rent cannot be apportioned. DALLAS C. J. We think that in this case the husband is not liable in this form of action, without en 1819. RICHARDSON V. HALL. 1819. RICHARDSON V. HALL. quiring whether he would be liable in an action of a meant meant to provide an easy remedy in the simple case of actual occupation, leaving other more complicated cases to their ordinary remedy. In the case now under consideration, the Plaintiff must be left to such other remedy as she may be advised to pursue: she cannot recover in an action for use and occupation, without proof of the use and occupation alleged; and if she can recover at all in this form of action, against one man for use and occupation by another (as to which we give no opinion) it must be upon the ground of that occupation having been permitted at his request, and that request must be proved." Here, the former part of the occupation is by the wife alone, and not by the husband; no request by the husband is shewn; and therefore that which is alleged has not been proved, and the Plaintiff is not entitled to recover. In the case PARK J. I am of the same opinion. of the house burnt down, there was still an occupation of the land; and the argument that there can be no apportionment of the rent tells for the Defendant. BURROUGH J. There was no occupation by the husband for the former part of the half year, in fact or in law. It is true that the contracts of the wife are charged on the husband by the act of marriage, but the rent to Michaelmas was an entire thing, and unless the whole became due, part could not. The special instance and request is material, according to the subject-matter, and, as was held in Naish v. Tatlock, it must be proved here, but it cannot apply to a time at which the husband had no right and no enjoyment. The declaration here being framed as in an ordinary case of use and occupation, and not specially, the Plaintiff cannot recover. If an action of debt had been brought, the declaration might have stated in a 1819. RICHARDSON บ. HALL. 1819. RICHARDSON v. HALL. plain way the facts of the case, and the Plaintiff might have recovered. In this action he cannot. RICHARDSON J. I am of opinion that this action for use and occupation cannot be maintained. Naish v. Tatlock is an express authority to shew, that the remedy by action of use and occupation is not co-extensive with the action of debt for rent. The effect of that decision is, that the statute gives a collateral remedy for the actual holding in cases where it might be difficult to sustain the action of debt. In the present case, the actual occupation of the Defendant was only from the 8th of June till the end of the half year, therefore there was no occupation, as alleged, for the previous time. If on the 8th of June the wife had sold her interest, no action could lie against the vendee for her occupation; he would have been a stranger, and the husband was equally a stranger to her occupation. My Brother Lens distinguishes this case from that of Naish v. Tatlock, because the husband is liable by operation of law for his wife's contracts, while the assignees of a bankrupt are only chargeable in their own character. It is true that, generally speaking, for contracts entered into by the wife dum sola, the husband is jointly liable, but the occupation in this case was the same as if it had been by a stranger. No injustice is done by this decision, for the Plaintiff may find some other remedy. Rule discharged. 1819. WILSON V. WELLER and Another. REPLEVIN, The Defendants made cognizance as Where the examine upon oath any servant, &c. and to make order for payment of wages to such servant, and a magis trate, in his adjudication on this act, avers a complaint made on oath, and an examination on oath, bailiffs of H. Hopkins, Esq., a justice of the peace for statute of lathe county of Sussex, and said that at the time when, bourers gives a magistrate &c., John Crosweller was a labourer, and at the time jurisdiction to of his making his complaint in the cognizance mentioned, there was due to him, as such labourer, from the Plaintiff, a sum of money under the sum of 57., to wit, 37. 4s. for wages for work and labour done by the said J. C. for the Plai..tiff; that thereupon J. C. made his complaint to H. Hopkins, being such justice, and duly made oath before him that the Plaintiff had refused to pay to him J. C. the said sum of 31.4s.; that thereupon the said justice summoned the Plaintiff to appear before him on the 29th of September, 1817, at the parish of Brightelm stone, to answer that complaint; that the Plaintiff did appear, and thereupon the said J. C., in the presence and hearing of the Plaintiff, did duly make oath and swear before the said justice, that the said 31.4s. was tiffs goods, for justly due to him the said J. C., and that the Plaintiff the Plaintiff to had refused to pay the same, and that the Plaintiff shewed no just cause why he should not pay the same. Whereupon the said justice duly made his order in writing under his hand and seal, and did thereby adjudge, order, and determine, that the Plaintiff should that adjudicapay to the said J. C. the said sum of 31. 4s, which peared to the justice to be just and reasonable to be paid by the Plaintiff to the Defendant, as and for his wages and expenses as aforesaid, of which order the Plaintiff had due notice; that a demand of that sum was it is not com petent in re plevin for taking the Plain plead in bar of a cognizance made under a warrant of dis tress and sale founded on tion, that the servant did not duly make oath before the ma gistrate that the sum claim ed was justly due to him for wages. 2. Nor can he plead that the sum claimed was not due. Where a magistrate has competent jurisdiction, and adjudges, and on refusal to pay issues a warrant of distress and sale, the goods taken under it are not replevisable. Dictum per Richardson J. made |